I n January, the U.S. Supreme Court heard arguments in a controversial case that has the real potential and ideological purpose of
harming public-sector labor unions. The case is
Friedrichs v. California Teachers Association, and it
has gained national attention. It is also a watershed
moment for the Supreme Court’s legacy, for the
continued strength of public-sector unions, and
even for the outcome of the 2016 national and state
elections. Why is this case so important?
The MTA is made up of more than 110,000 public
education employees, active and retired. We represent
you because public employees in Massachusetts, as
in California and many other states, have the right to
join a union in order to bargain collectively with their
government employer. By joining a union, employees
also gain firepower to publicly advocate in political,
legal and media forums for their economic and
professional interests. When a majority of employees
in a bargaining unit vote for a union, the union they
choose becomes the “exclusive representative” of all
employees. Unions increase wages, protect health
insurance and other benefits, and enforce the rights of
everyone in the unit.
Some employees do not wish to join a union or
pay for the costs of the representation from which
they directly benefit. Indeed, the First Amendment to
the U.S. Constitution forbids the state from passing
a law that would compel such membership. The
problem is that the union still has a legal duty to
deliver services to the non-members who pay no
dues at all. Non-payers are thus commonly referred
to as “free riders” because they get the benefits of
collective bargaining but share in none of the costs.
In 1977, the Supreme Court balanced the interests
of the employee majority who chose unionization
and the constitutional rights of objectors. In Abood
v. Detroit Board of Education, the court held that
non-members can be charged a “fair share” or
“agency” fee to pay for the bargaining-related costs
that the union incurs on behalf of everyone. The court
expressly rejected the argument that an agency fee
arrangement — authorized by state law — intruded
upon a non-member’s protected rights of association
or speech. And it rejected the assertion that collective
bargaining with a government employer is a political
act that non-members cannot be compelled to
subsidize.
T hus, Abood affirmed the right of a union to collect a fee from non-members for the costs of collective bargaining, though it required
the union to remove the costs of non-bargaining
political activity. The scales of justice were balanced:
Non-members could be required to pay for the
benefits of bargaining, but not for the union’s
political activities. To have held otherwise would
have compelled “free ridership” and forced union
members to subsidize the cost of the services that the
non-payers are legally entitled to receive.
Indeed, Justice Antonin Scalia later referred to
non-paying non-members as “free riders whom the
law requires the union to carry — indeed, requires
the union to go out of its way to benefit, even at the
expense of its other interests.”
Over the next 35 years, the Abood decision
became deeply embedded in constitutional
jurisprudence. As recently as six years ago,
a unanimous Supreme Court upheld Abood ’s
“general First Amendment principle” permitting
the imposition of a fair-share fee on non-members.
It has been cited with unquestioning acceptance
in hundreds of legal cases upholding fair-share
agreements. It has been cited in cases involving bar
association dues, university student activity fees,
and other contexts. Tens of thousands of public-sector bargaining agreements contain agency fee
provisions. Abood has been a bedrock principle of
public-sector labor law for nearly four decades.
Now the Friedrichs plaintiffs seek to overturn
Abood.
So what changed?
S everal things changed. First, a right-wing public-interest law organization called the Center for Individual Rights emerged several
years ago to battle affirmative action, voting rights,
gay rights and public-sector unions. Its benefactors
are a veritable Who’s Who of right-wing foundations
and billionaires who perceive public-sector unions
as an obstacle to conservative domination of the
political system. Think Koch brothers.
Second, in 2006 Justice Samuel Alito was
appointed to the top court. He was a controversial
selection who was seen as a far-right nominee from
the Republican Party’s reactionary wing. He survived
a Democratic filibuster and was narrowly approved
in the Senate. His views have hardened, and he has
pulled the court sharply rightward.
Third, these developments came together in
2012 and 2014 when two public-sector labor cases
came before the Supreme Court. Although the
legitimacy of Abood was not raised in those cases,
Justice Alito openly announced his antagonistic
view of Abood ’s reasoning. In those cases, Alito
all but solicited the legal attack that the Center
for Individual Rights was primed to bring. Cases
ordinarily take years to arrive at the Supreme Court
through the federal judicial system. Not Friedrichs,
which sped through the lower courts without any
evidentiary record to slow it down.
What did not change is the constitutional issue.
The arguments now advanced in Friedrichs are the
same as the arguments that were made in Abood. The
court must answer once again the questions answered
in Abood: whether an agency fee arrangement —
authorized by state law — intrudes upon a non-member’s protected rights of association or speech,
as well as whether anything collectively bargained
with the government is inherently within a political
sphere so that non-members cannot be compelled to
subsidize it.
The Supreme Court is supposed to be guided
and governed by what is called stare decisis, a legal
doctrine that counsels against overturning established
legal precedent absent powerful reasons for doing so.
Stare decisis provides stability and predictability in the
law and minimizes judicial idiosyncrasy. Established
constitutional pronouncements are not supposed to
change with the composition of the court.
M any commentators in legal and media circles have suggested that Friedrichs is a companion to Citizens United, a
politically charged decision that opened the
floodgates for corporate cash into our national
campaign and electoral system. Supporters of
Citizens United like to note that union political
contributions are the counterweight to corporate
political contributions. Setting aside the obvious
fact that union money is a fraction of the corporate
money flushing through the system, Friedrichs
threatens now to remove that political counterweight
and with it a justification for Citizens United ’s result.
Are there five judges on the Supreme Court
ready to overturn a carefully rendered 39-year-old
decision of their own respected predecessors? Will
they be willing to overturn countless lower-court
decisions that have relied on Abood Will they
abandon their federalist principles to overturn the
power of states to determine their own collective
bargaining laws? Are they prepared to issue a
decision that is nakedly and unabashedly political,
right in the middle of the 2016 presidential
campaign? (Bear in mind that the next president may
have the opportunity to make several Supreme Court
appointments.)
Some members of the court may despise public-sector unions and the role they play in the political
and economic life of this country. One can only hope
that the court’s high regard for its own reputation and
legacy will stop it not just from tipping the scales of
justice but from tarnishing them beyond recognition.
Ira Fader is the general counsel of the
Massachusetts Teachers Association. For
information on MTA legal services, please visit
massteacher.org/legal.
In 1977, the Supreme Court
balanced the interests of
the employee majority who
chose unionization and the
constitutional rights of objectors.
... The court expressly rejected
the argument that an agency
fee arrangement — authorized
by state law — intruded upon a
non-member’s protected rights
of association or speech.
