The war on unions moves to the Supreme Court on Monday

oligarchy-300x300The Roberts Court is once again poised to overturn long-standing Supreme Court precedent to benefit wealthy Plutocrats over working Americans.

This time it is free-riders who want all the benefits of collective bargaining, but who do not want to pay union dues, pitting their alleged  “free speech” rights under the First Amendment against  the “association” rights of unions under the First Amendment.

The goal here is to weaken or to destroy the organizational capability of unions in collective bargaining vis-à-vis employers and, more broadly, to weaken or to destroy the financial capability of unions to be a social force in politics so that the wealthy Plutocrats unleashed by Citizens United v. FEC can entirely preempt the field.

Of course, the patrician prevaricator for the Plutocracy, George Will — who wants to see a return to the Lochner Era in which employees had no rights vis-à-vis the owners of capital — is all for this result. Check out his Libertarian spin: Will the Supreme Court undo the damage done to the rights of millions of government workers?  George Will is a master of assholery.

Amy Howe of SCOTUSblog has a plain English analysis of the case to be heard on Monday. Justices return to dispute over union fees for non-members:

On Monday, the Justices will hear oral arguments in a case which asks them to overrule a 1977 decision and hold that public employees who don’t want to join the union that represents them also can’t be required to pay a fee to cover the costs that the union incurs in collective bargaining. It sounds like a relatively mundane question, but the Court’s decision could have a broad impact on the financial health of public-employee unions and possibly even politics more broadly. Let’s talk about Friedrichs v. California Teachers Association in Plain English.

To understand the case, you have to start with the current law on public-employee contributions to unions. It is settled that public employees who are not members of the union cannot be required to pay fees that a union would use for political activity like union organizing. But the Supreme Court held in the 1977 case, Abood v. Detroit Board of Education, that they can be required to pay a “fair share” or “agency” fee to cover the union’s costs to negotiate a contract that covers all the public employees, even those who are not union members. The question now is whether to hold that requiring an objecting employee to pay even this more limited fee violates the First Amendment.

If the issue sounds familiar, it may be because the Justices had this exact question before them two years ago. They didn’t rule on the question then, concluding instead that the employees in that case – home health aides, who usually take care of family members and were compensated by the state of Illinois – were not actually public employees. But in their opinion, five Justices suggested that they might be willing to reconsider Abood.

The case now before the Court was brought by (among others) a group of California teachers who object to having to pay any fees at all – even for collective bargaining – to the teachers’ union there. They argue that, when you are talking about public employees, even something like collective bargaining is inherently political, because the salaries and benefits that the union is negotiating come out of the public budget. Therefore, they contend, being required to pay to support that collective bargaining violates the First Amendment, because they are being required to identify with a political cause – which is precisely what the Court in Abood said that they cannot be required to do.

California and the teachers’ union (as well as the United States, which filed a “friend of the Court” brief supporting them) counter that the fees charged to non-members are necessary to make sure that the union has enough money to carry out its duties for all of the employees that it represents. Charging non-members for the costs of collective bargaining also avoids a “free-rider” problem – a scenario in which the non-members receive the benefits of the union’s collective bargaining work without having to actually pay for it. And there is no risk, they contend, that anyone will believe that a non-member agrees with the union’s collective bargaining positions just because he is required to pay a fee to fund that bargaining; in any case, though, Friedrichs and her fellow teachers are free to publicize their own, contrary views.

California and the union also argue that, putting everything else aside, they should prevail because the teachers have not met the high bar that is normally needed to justify overruling one of the Court’s earlier cases. They warn that, in the nearly four decades since the Court’s decision in Abood, “literally tens of thousands of contracts governing millions of public employees have been entered into in reliance on” that ruling; reversing course now, they said, would upset that system, even though Friedrichs and the other plaintiffs have not shown that there is a real problem with the system.

If the Court were to rule for Rebecca Friedrichs and the other teachers challenging the fees, the impact could be very significant not only for the California Teachers Union but also for any other union that represents public employees who are required to pay fees to cover collective bargaining. If employees don’t have to pay the fees (which, the teachers say, can be “roughly two percent of a new teacher’s salary” in California), it is likely that many of them won’t – which could in turn lead to substantially more precarious financial situations for many public-employee unions. And although the fees now at issue before the Court are not used for politics and lobbying, less money in the unions’ coffers could mean a smaller role on the political stage for organized labor, which by one estimate spent $1.7 billion during the 2012 election cycle.  So the stakes next week are high indeed.

Even if the Court ultimately concludes that public employees who are not members of a union can nonetheless be charged an “agency” or “fair share” fee, Friedrichs and her fellow teachers could still prevail on a second, “fallback” issue. Under California law, the fees charged to non-members may also include some other expenses not related to collective bargaining. A non-member who doesn’t want to pay for those expenses can receive a refund or reduction of that part of the fee if he gives the union written notice of his objection. But the challengers in this case argue that the system has it backwards: instead of charging everyone for those expenses and requiring non-members to opt out, the union should only charge the people who affirmatively opt in by agreeing to pay them. California and the teachers respond that, from an administrative perspective, it is more efficient for the government to require non-members to opt out of the additional fees, particularly when most non-members do pay the fees and the process to opt out is not difficult. On this point, the United States adds that an “employee who is willing to exert even the minimal effort necessary to check a box and mail in a form suffers no cognizable First Amendment harm.”

Although the plaintiffs in this case would certainly take a victory on the “fallback” question over no victory at all, it would be a somewhat hollow win, as the case was filed specifically in the hope of getting the Court to overrule its decision in Abood. One thing to watch for at Monday’s argument will be how much time the Justices spend on the “opt-in/opt-out” question; if the Court’s more conservative Justices don’t seem that interested, it may be because they think they have enough votes to overrule Abood altogether.

Tabatha Abu El-Haj, Associate Professor of Law at Drexel University Thomas R. Kline School of Law, has a deep-dive analysis of the broader implications of this case at the Balkinization blog. :

Poll after poll reveals a bipartisan consensus that wealthy interests exert too much political influence, yet the Roberts Court is positioning itself to use the First Amendment to strike one more blow against the political power of ordinary Americans.  The case is Friedrichs v. California TeachersAssociation, a relatively obscure labor law case.

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California permits unions to set up what are known as “agency shops” in which no one is required to join the union to maintain employment, but everyone is required to pay a “fair-share service fee” for representation in collective bargaining.  The Friedrichs petitioners have invited the Court to rule that such agency shop arrangements are unconstitutional, at least for public unions.  All indications are that the Supreme Court will accept that invitation, overruling Abood v. Detroit Board of Education (1976) and providing a rationale that will easily be extended to private-sector unions.

Any decision by the Court that strikes a blow to unionism will further erode the political power of ordinary Americans relative to wealthy Americans, just as a decision to undermine church-going or parental involvement in school boards would.  By promoting political participation among ordinary Americans, unions, like churches, PTA, and the Rotary Club, are part of a virtuous circle of civic mindedness, political engagement and democratic accountability – one that the First Amendment was established to protect not undermine. 

While the public is preoccupied with Citizens United and the flood of money it has unleashed into electoral politics, many political scientists believe that the solicitude of government officials to the preferences of wealthy citizens and donors results from deeper and longer-standing trends, including the increasing organizational advantage of socioeconomic elites compared to the middle class.  Affluent Americans today are estimated to be three times more likely to belong to civic organizations than middle-class Americans.  Three times more likely, that is, to belong to organizations like the Chamber of Commerce, which has been a key sponsor of right-to-work legislation.  Lost in the acrimonious debate about the merits of public-sector unionism is an appreciation of the fact that unions remain the secular backbone of the civic and political life of many ordinary Americans.  Even today union households turn out on election days at much higher rates than non-union households.

Neither First Amendment doctrine nor principles dictate such a result.  Friedrichs, like Abood, is a case of alleged compelled association, despite the petitioners’ best efforts to distract the Court with the suggestion that it is a case about compelled ideological speech.  Nonunion members’ primary objection to the agency shop arrangement is that it constitutes an “impingement on [their] associational freedom” to refuse to associate with the union, as explained in AboodThe text of the First Amendment protects separately the freedom of speech and a particular form of conduct – “the right of the people to peaceably assemble.”  The right of association is an extension of the latter, both historically, as John Inazu has argued, and functionally, as I have argued.  Associations do speak, but their unique contribution to our democratic system is less a product of the fact that they speak than of the fact that they organize – drawing in individuals through relationships personal and professional.

Once the associational angle is placed front and center, the mirage that petitioners’ freedom of association has been severely burdened by the agency shop arrangement vanishes even under existing doctrine.  Abood’s central holding prohibits the compelled payment of fees to cover political and ideological projects but allows unions to charge nonmember employees fees for services related to collective bargaining over terms and conditions of employment.  In essence, this creates a distinction, for First Amendment purposes, between unions as associations of employees (and therefore of employment related advocacy) and unions as civic associations (and their related political advocacy).  This distinction is consistent with current freedom of association doctrine.

Even if we concede for purposes of argument that the agency shop arrangement constitutes compelled association, the union in its collective bargaining capacity is the sort of association that lies outside constitutional purview.  Not all forms of association are constitutionally protected under established freedom of association doctrine – a fact Justice Alito neglected to explain in in his eagerness to cast doubt on the continuing validity of Abood in Knox v. SEIU, Local 1000 (2012) when he emphasized that the “[f]reedom of association . . . plainly presupposes a freedom not to associate.”

Meaningful constitutional protection only attaches to intimate and expressive associations.  Economic associations acting in economic capacities have not been recognized as expressive associations.  Like trade and professional organizations, unions are generally considered too large and unselective to be afforded constitutional protection.  Corporations, similarly, are not afforded protection under current freedom of association doctrine, except when they engage in political speech. Were it otherwise, unions and corporations would be constitutionally entitled, if they so chose, to defy state public accommodation laws and federal civic rights law – excluding membership or employment on the basis of race, gender and, where covered, sexual orientation – like the Boy Scouts of America did.

Even if one is critical of current doctrine, the claim that the petitioners’ freedom of association (or more precisely freedom not to associate) has been burdened by the requirement to pay the fair-share service fees borders on disingenuous.  Non-union employees are only asked to pay this fee because they have chosen to associate as employees with their unionized co-workers.  In other words, even if the very act of association is expressive, as John Inazu has argued, Friedrich has already made that expressive association in choosing to teach in California’s unionized public schools, rather in those few that are not unionized or in a private school.  The fair-share service fee is directly related to this chosen association.  It covers collective bargaining over terms and conditions of employment.

Equally importantly, the nonunion employee’s right to oppose unionism is fully preserved.  She is free to refuse to join the union qua civic association and, even more specifically, free to refuse to subsidize its political speech.  (There is an opt-in/opt-out debate, but even petitioners recognize this is not what this case is really about, devoting only the last four pages of their brief to the issue).  As the Abood Court noted, “A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint.  Besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private orally or in writing. . . . public employees are [generally] free to participate in the full range of political activities open to other citizens.”  She is also free to join civic and political associations that oppose unionism.

Petitioners’ emphasis on the fact that this is a public union is a constitutional red herring.  The essence of their claim is that it does not make sense to distinguish between public-sector unions as economic actors and public-sector unions as political actors:  Collective bargaining relating to terms and conditions of employment in the public sector, they claim, is inherently political speech, materially indistinguishable from lobbying.  As such, requiring nonunion employees of public-sector unions to a pay fair-share service fee is a form of compelled subsidization of ideological speech.

Whether or not the collective bargaining speech of public-sector unions is inherently political is immaterial:  Petitioners have freely chosen to become public school teachers, in full knowledge that the have chosen a unionized work setting, with higher wages but also less autonomy over the terms and conditions of employment.  In choosing to work for the government in a unionized setting, petitioners have already chosen association over non-association, as employees.  There is no compelled speech.  Petitioners are no more compelled speakers than any member of the Boy Scouts who prior to 2015 paid dues as a condition of maintaining membership, but opposed the associations’ exclusion of gay scoutmasters.

The real threat in this case is not to petitioners’ freedom of association but to the First Amendment interests the freedom of association guards.  A decision in favor of the Friedrich’s petitioners strikes a blow to one of the prerequisite of representative government – a robust civil society populated by a diversity of active civic groups.  Fair-share service fees make unions more possible, and unions make self-governance more possible by supporting the organizational capacity of working and middle class Americans.

The First Amendment shields individuals from compelled speech and association, but it also compels the protection of existing civic associations.  The labor regime sought by the Friedrichs’ petitioners leads us quickly into the tragedy of the commons:  Even pro-union workers might make the economically rational decision to withhold their fees, hoping that others will fund the union, but rapidly undermining it.  By contrast, under the existing labor law regime in California and those states with similar laws, there is no similar opportunity to free ride.  Both union and nonunion employees are required to pay their fair share of the employment-related representation the union has a duty to provide on an equal basis.  Compelled fair-share service fees are necessary to counteract the very real free rider problem that would arise among members if such fees were optional.

Abood’s central holding is sound.  The First Amendment protects individuals in the service of preserving the necessary conditions of representative government.  Freeing nonunion members from compelled association with the union or compelled political contributions facilitates the individual’s First Amendment right to choose to dissent from the project of unionism and to join opposing political associations; refusing to extend to that same individual a First Amendment right to refuse to pay fees to cover employment-related representation ensures a structural interest in facilitating the sorts of civic organizations that foster informed political participation.

UPDATE: The oral argument transcript in Friedrichs v. California Teachers Association is here.

2 responses to “The war on unions moves to the Supreme Court on Monday

  1. American Vendetta

    This court has already given corporations unlimited ability to spend for political action and taken away the right of the consumer to sue for damages. This is the final step in bringing back the gilded age of the robber baron.

    Funny how conservatives will argue that if you don’t like what your employer does politically or like how your paid you can go work somewhere else because that is your right. However, if you are seeking a job where a union is involved then it is your right to stay and get a free ride as opposed to seeking employment somewhere else. A cup of hypocracy anybody???

  2. captain*arizona

    unions are a reaction to injustice. the only thing unions have to fear is if injustice goes away. organize the fast food workers(hard) collect union dues(easy). back to organizing union leaders!