Why Are Unions So Worried About an Upcoming Supreme Court Case?

On Monday, the Supreme Court will hear arguments in a case that experts say could provide a sizeable blow to the unions that represent millions of American public employees.

“There is a huge sector of the U.S. labor movement that is now going to potentially experience a dramatic change if the court rules in favor of the plaintiff,” said Kent Wong, the director of the UCLA Labor Center.

The case concerns a teacher in California, Rebecca Friedrichs, who has sued the California Teachers Association, arguing that being required to pay a fee to the union violates her First Amendment rights. Friedrichs is not a member of the union, but, like many other public employees, is required to pay a so-called agency fee to cover the costs of collective bargaining and other negotiations with the school district—union activities that all teachers, even non-union teachers like Friedrichs, benefit from in the form of higher salaries and better benefits. To be clear, these agency fees are different from dues that union members pay, which can be used by the unions for political expenses such as lobbying and electoral work. The law allows public-sector employees to opt out of dues and just pay an agency fee to cover the cost of bargaining—an accommodation intended to protect people’s First Amendment rights. Teachers who, like Friedrichs, have opted out of the union are still represented by it in various contract negotiations, which is why they are required to pay a fee. In California, members pay annual dues that average about $1,000 a year, while non-members pay about $600 to $650 for the agency fee alone.

Friedrichs’ lawsuit argues that all activities that unions do are political in nature, including collective bargaining and representation in employer-employee disputes, and that she should not be forced to subsidize any union activities, including those that get her a raise or health insurance.

“Just as the government cannot compel political speech or association generally, it cannot mandate political speech or association as a condition of public employment,” the lawsuit argues.

The distinction between agency fees and union dues was set in a 1977 Supreme Court case, Abood v. Detroit Board of Education, in which Detroit teachers made almost exactly the same argument that Friedrichs is making today. Then, though, there was no distinction between agency fees and union dues. In its decision in Abood, the Burger court struck a balance on the relationship between public employees and labor unions, said Charlotte Garden, a professor at Seattle University School of Law. Abood allowed public-sector unions to charge for the cost of representation, but not the costs of political activities, creating the distinction between agency fees and member dues.

Before Abood, certain jobs required union membership as a condition of employment, a  practice that predates the National Labor Relations Act of 1935. In 1947, the The Taft-Hartley Act allowed right-to-work laws in the states, limiting the power of private-sector unions by making it possible for companies to locate in states where union membership was not compulsory.

In cases on private-sector unions, the Supreme Court implied that public-sector unions might be subject to greater limitations, but did not formally reach the question until Abood, a decade and a half later.

But two recent cases have suggested that the court may be interested in reconsidering Abood, Garden said. In a 2012 case, Knox v. SEIU, which concerned whether members could opt out of a one-time dues increase, the Roberts court ruled 5-4 that members have to opt in, rather than opt out, of a one-time dues increase. In a 2014 case, Harris v. Quinn, the court ruled that home health-care workers in Illinois were not full-fledged public employees and so could not be compelled to pay even agency fees to a union. Significantly, Justice Alito, writing for the majority in that case, called into question the reasoning behind the Abood decision. Conservatives rejoiced and waited for the next case that would again challenge Abood.

“Today’s decision in Harris v. Quinn has at least made Abood a ghoul, one of the walking dead,” John Eastman, a conservative lawyer, wrote in a piece for SCOTUSblog in 2014. In September, Eastman signed onto a brief supporting Friedrichs in her case.

Garden suspects that since Alito wrote the opinions in Knox and in Harris, he’s the one driving these cases. And he seems ready to dismantle Abood, writing that it causes administrative headaches as unions distinguish between political and non-political causes.

Unlike the two cases that preceded it, Friedrichs takes on the question of fees—one that is essential to all public-sector unions—in the field that is perhaps the most essential to public-sector unions: education. The Friedrichs argument posits that even bargaining intended to directly benefit teachers is political. Governments are low on money, it argues, and people represented by unions might not agree with union leadership that they should receive raises from a cash-strapped system, for example, or that more money should be spent on education.

“It is difficult to imagine more politically charged issues than how much money local governments should devote to public employees, or what policies public schools should adopt to best educate children,” the brief argues.

A decision against unions in Friedrichs could severely weaken unions’ bargaining and financial power. Under federal law, if a majority of employees decide to form a union, the union must represent all employees for bargaining purposes. But if some people decide not to join (whether because of genuine political disagreement or merely to save money on the fees), the union has less leverage because it represents fewer members. It also has less money to pay for the things that keep it strong, like bargaining and organizing. But it still has an obligation to do things such as bargaining and organizing since, in many states, public employers are required to bargain with unions.

“Reading the tea leaves, I think there is cause for public-sector unions to be concerned,” Garden said.

* * *

A ruling against unions would not kill the labor movement for good, experts say. But it would severely harm it. Though the case’s concerns are limited to  public-sector unions,  the public sector is one of the only reliably organized sectors left in the country. About 35 percent of public-sector workers, or 7.2 million workers, belonged to a union in 2014, the most recent year for which there is data available, according to the Bureau of Labor Statistics. In that same year, only 6.6 percent of the private sector, or 7.4 million workers, was unionized. The percentage of public-sector workers who are unionized has remained relatively constant over recent years, while the percentage for the private sector has continued to shrink.  

If the Court decides in Friedrichs’s favor, the ruling could essentially make being in a public-sector union anywhere akin to joining a private-sector union in a right-to-work state. In the nation’s 25 right-to-work states, private-sector members do not have to join unions as a condition of employment—even at unionized shops—nor do they have to pay dues. And when workers don’t have to pay dues, they often choose not to, because they can get the benefits of a union’s collective bargaining for free because they are still represented by the unions. (A UC Irvine professor has recently argued for allowing unions to only represent people who pay dues, but that would require changes to the National Labor Relations Act.)

In 2014, for example, the first year after Michigan, a one-time union stalwart, became a right-to-work state, union membership fell 7.6 percent, to 585,000 members. In Wisconsin, where Governor Scott Walker restricted the ability of public-sector unions to bargain collectively, essentially taking away motivation for workers to be in unions since the unions can’t represent them in negotiations, membership in the American Federation of State, County, and Municipal Employees (AFSCME) declined to 13,000 members, from 32,000, over the course of three years.

If public-sector unions have cause to be concerned, so too does the Democratic Party. In the 2012 election cycle, the Service Employees International Union (SEIU), the United Auto Workers (UAW), the American Federation of State, County and Municipal Employees (AFSCME), and the American Federation of Teachers (AFT) were among the top 12 contributors to Democratic and liberal candidates at the federal level, according to the Center for Responsive Politics.

To be clear, Friedrichs would not change the amount of money that unions can raise from members who choose to pay dues and fund political activities. But allowing members to opt out of agency fees could mean that unions have to spend more money on bargaining activities to make up for the lack of fees paid by people who opt out. If unions still have to spend time and money bargaining and lobbying, but have less money, they’ll have to spread what they have more thinly.

“If this goes the wrong way for the unions, they’re going to have a lot less money, period,” said Viveca Novak, the spokeswoman of the Center for Responsive Politics. “They’ll have less money to spend, and the Democratic Party will lose a big source of its support.”  

Unions argue that this case isn’t about fundraising or free speech, but that it is about the fundamental right of unions to bargain with employers for worker rights. When employees form a union, that union has a legal duty to represent all employees in grievance proceedings with an employer and in contract negotiations with the employer. Requiring a union to continue to bargain with an employer for free is unfair, they argue.

Overruling Abood “would undermine important state interests and cause unwarranted disruption in States, such as California, that have structured and maintained their public-employment systems based on this Court’s precedents,” California Attorney General Kamala Harris argued in a brief supporting the union’s position.

A few other employers have filed briefs agreeing with the unions. School districts including the Alameda Unified School District in California, the New Haven Public Schools district in Connecticut, and the Montgomery County Public School district in Maryland, filed a brief arguing that unions enhance the quality of education when they bargain on behalf of students and teachers. When unions have financial security because of agency fees, the brief argues, they don’t have to take hardline negotiating positions in order to prove to members that they are worth the cost. Unions can help administrators and teachers work together in harmony, the brief argues.

“Collaborative partnerships with unions provide a framework for getting the best feedback from principals, teachers, and support staff in a systematic, respectful and honest way,” it says.

Panjak Sharma has seen that collaboration between unions and a school district play out. He’s a teacher in a high school in Skokie, Illinois, and is a member of the American Federation of Teachers. Being in a union has allowed him to share decision-making with administrators and the school board, he told me. The union helped improve a teacher-evaluation system that hadn’t been working, bringing in veteran teachers to give feedback to new teachers and improve their methods.

“Ultimately, I know it leads to a better school system,” he said, about the union’s work with the school district.

Rebecca Friedrichs argues the exact opposite. She told The Washington Post that she was “shunned” after saying she supported school vouchers in California, and that when she suggested to the union that it should offer to take a pay cut during a rough patch in the economy, she was ignored. If she wins, she said, workers will only join unions if they agree with what they do—and feel like it’s within their budgets to fork over the fees.

“If teachers see that a union is good, they’ll join. If they feel like me and they’re troubled in their conscience, they won’t join,” she said.

* * *

Labor’s advocates say there is a bright spot. A decision against unions could also galvanize members, motivating them to organize more workers or to lobby for laws that protect unions, said Wong of UCLA. In Ohio, for instance, after Governor John Kasich signed a bill limiting collective bargaining there, unions fought back, and put a measure on the state ballot allowing unions to collectively bargain. It won in the state by a 2-to-1 majority, forcing Kasich to admit he’d made a mistake.

Governor Walker’s efforts in Wisconsin made him the target of a recall election, which he survived, but the Wisconsin Democracy Campaign told me union fundraising and spending hadn’t fallen since Walker’s bills were passed because so many people were giving to unions, urging them to fight back against Walker.

In California, after the Harris v. Quinn case, home health-care workers stepped up their outreach and recruitment efforts, succeeding in organizing more workers, said Wong, the UCLA professor. Likewise, in 1998, after polls showed three out of four people would vote for a proposition that would have severely restricted the ability of California labor unions to participate in political campaigns, unions rallied their members and ended up beating the proposition in the elections.

Unions with a strong organizing apparatus and who have done recent mobilizing campaigns will be just fine, regardless of Friedrichs, Wong said. The 2016 elections could help, too, as unions organize members around key issues, at a time when people are paying attention to politics.

“These types of attacks on unions can have a crippling impact,” he said. “On the other hand, they can have the opposite effect, where unions really rise to the occasion and mobilize their members.”

But what frightens labor supporters the most is that a ruling against unions could tacitly boost the anti-union attitude that has been spreading in recent years. It could give employers, who in many states now have free rein to advocate against unions, an upper hand, said Kate Bronfenbrenner, a senior lecturer at Cornell. If being a union member isn’t a condition of employment, employers may be tempted to try and coerce workers to opt out in exchange for promotions.

“It gives employer the power to intimidate and coerce workers to not become members,” she said.

Even if an employer is neutral in the fight, outside opposition from states and politicians has become commonplace, making attempts to organize in anti-union regions a difficult task. As I’ve written before, union membership is only growing right now in left-leaning states such as Vermont, where workers feel they won’t face retaliation for joining a union.

What’s more, unions that have long been able to count on membership numbers and dues every year will have to once again go through the process of organizing members, motivating members, and convincing members that they should join a union and pay dues. All the angry union members in the world may not be able to successfully push back an assault on their rights that has the backing of the Supreme Court.

“It’s absolutely possible that there’s going to be a decision that is going to forever change the rights of public-sector workers,” Bronfenbrenner said. “What could come out of it is two possibilities, one is that a frustration builds and there is a demand for new and different labor laws and the second is that the labor movement is forever weakened.”