Here is the fourth article in our series examining the issued raised in Friedrichs v. California Teachers Association, a case currently before the US Supreme Court that could have profound implications for the future of public-sector unions such as the PSC.
If the questions asked by the Supreme Court justices during oral arguments offer any indication, the outcome of Friedrichs v. California Teachers Association (CTA) could dramatically alter the fate of public-sector unions. Experts believe that the labor movement is likely to face an unfavorable ruling when the decision is handed down this spring.
“It seems like this is going to be an open-and-shut case for this Supreme Court,” Penny Lewis, academic director of Labor Studies at CUNY’s Murphy Institute, told Clarion.
At oral arguments conducted on January 11, the four liberal justices seemed largely in sympathy with assertions made by the lawyers representing organized labor and the state and local governments who bargain with unions. But members of the Court’s conservative majority (with the exception of Justice Clarence Thomas, who, as usual, did not speak) signaled a willingness to accept arguments against the union position.
Defining political activity
Although the questions posed during oral arguments do not always forecast the eventual voting patterns of the Court, prominent Court-watchers are predicting a tough outcome for the unions.
At stake are the “agency fees” (sometimes called “fair-share fees”) that require every worker in a bargaining unit to pay a fee to cover the costs incurred by the union that is required to represent them for the services provided to employees in the unit, such as collective bargaining and grievance proceedings. American labor law requires unions to represent every employee in a bargaining unit, regardless of the worker’s membership status in the union. Non-members, however, are exempt from paying for a union’s political activities, usually deemed to mean lobbying or participation in election campaigns.
Part of what is being argued in Friedrichs is the very nature of a “political activity.” The handful of public-school teachers who – together with the Christian Educators International Association, a right-wing organization that seeks to bring religion into public schools – brought the suit against the CTA contend that bargaining for better wages and working conditions constitute political activities. The petitioners in Friedrichs argue that virtually any activity public-sector unions engage in is political.
Forcing non-members to subsidize the work a union is required by law to do on behalf of all employees, the plaintiffs argue, is an intrusion on their right to free speech. (See the September 2015 issue of Clarion, “SCOTUS case could gut unions.”)
The radical reinterpretation of existing law that the petitioners are arguing would overturn the ruling of Abood v. Detroit Board of Education, a 1977 case that cemented the legality of agency fees. Because precedent in prior Supreme Court decisions came down on the side of organized labor, the petitioners who seek to overturn Abood actually asked all the lower courts to rule against them without a trial. (Lower courts cannot rule against a Supreme Court decision, and the lack of trials in lower courts sped the case to the Supreme Court docket.)
The widespread adoption of agency fees came about in the 1970s, after public unionism became pervasive, and was meant in part to subdue the more militant tendencies in the movement. Because of the shaky legal ground on which public-sector unions stood at that time – the National Labor Relations Act only applies to the private sector – many labor leaders felt that strikes and activism were needed to prove, to both the membership and the employers, the seriousness of the nascent unions. In 1977, the year Abood was decided, there were 298 major work stoppages. But in the Friedrichs oral arguments, the term “labor peace” was not used once by either side, perhaps because in 2014 there were only 11 major work stoppages. No year since 1977 has seen as many strikes again.
“The specter of working-class revolt has receded, the strike rates have dramatically decreased, and the power of unions has dramatically decreased,” Lewis said. This Court, Lewis explained, is not under the kind of political pressure to ensure stability felt by the Burger Court in the 1970s. “The idea that you would have to use a concession like agency fees to forestall disruptions is off the table,” she said.
Where justices stand
Court-watchers had speculated that either Justice Antonin Scalia, who has previously expressed sympathy for some of the arguments advanced by the union-side lawyers, or Justice Anthony Kennedy, a Reagan appointee known for breaking ranks with his fellow conservatives, would prove favorable to the labor side. But during the argument of the Friedrichs case, both men strongly hinted that, despite the slender legal reed on which the petitioners’ case rests, they are ready to buy into the argument that anything a public employee union does, no matter how quotidian, is inherently political.
“The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” Scalia, who was also appointed by Ronald Reagan, said during oral arguments.
Kennedy appeared to concur. “It’s almost axiomatic,” he said. “When you are dealing with a governmental agency, many critical points are matters of public concern.”
Chief Justice John Roberts, appointed by George W. Bush, appeared to be in the same camp, asking California Solicitor General Edward Dumont, who represented the state on the same side as the union, to name an issue covered by collective bargaining that is not “a public policy question.” Dumont offered up the examples of “mileage reimbursement rates” and “public safety.”
“It’s all money….” Roberts replied. “That’s how much money is going to have to be paid to the teachers. If you give more mileage expenses, that costs more money…. And the amount of money that’s going to be allocated to public education as opposed to public housing, welfare benefits, that’s always a public policy issue.”
Justice Sonia Sotomayor revisited this argument during the rebuttal offered by Michael Carvin, the lawyer for the petitioners. Sotomayor, who was appointed by Barack Obama, noted that certain uses of agency fees, such as employee training for workplace and fire safety, are clearly non-political. But Carvin would not concede the point.
Even these uses “are basic to our democracy,” Carvin said in his rebuttal to attorneys representing the union and the State of California, “and that’s why we have an absolute right not to subsidize it.” In other words, the plaintiffs’ lawyer was saying that the very imposition and conduct of such training was political.
“They do fire training. They do safety training,” said Carvin of the union. “Can you think of something that’s more a matter of public concern, that’s more of an ideological point, that’s more important? And yet they dismiss these as somehow prosaic issues.”
He then took aim at teacher training conducted by unions, noting that among so-called “education reform” circles, the class size of such trainings is a matter of concern, implying that those paying agency fees may not agree with the limits imposed on class sizes. “The unions have their right to take their side of that view,” Carvin argued. “What they don’t have,” he said, “is a right to demand that the other side subsidize their views on these essential questions of basic public importance.”
Justice Elana Kagan, also an Obama appointee, repeatedly pointed out the bizarre nature of the Friedrichs case, which does not build on any existing case law. Instead the basis for the petitioners’ case seemed to be conservative disdain for Abood expressed by Justice Samuel Alito, a George W. Bush appointee, in decisions in two recent cases: Knox v. Service Employee International Union (2012) and Harris v. Quinn (2014). Because there is no factual record for the Friedrichs – no actual case law on which to base it – it is instead being fought on highly theoretical, philosophic and political grounds.
If Abood is overturned, the agency-shop arrangements of public-sector unions will be thrown into question. Although the exact ramifications of such a loss are not immediately clear, there is little question that public-sector unions would lose substantial amounts of revenue. The Court could even make union membership an “opt-in” proposition in public-sector unions. Yet the unions will still be required to perform the same duties and provide the same services, whether or not those they represent deign to pay for them.
The result will be hugely taxing and, in some cases, insupportable. The political and workplace power of these unions will wane, at least in the short- to medium-term, until such time as the unions recalibrate their organizing strategies.
“I tell my students – and I like to think – that [the Supreme Court justices] aren’t political actors,” says Frank Deale, professor of constitutional law at the CUNY School of Law. “I’d like to think they have respect for precedent, they have respect for their own decisions, and the Constitution, and respect for the reliance over a certain number of decades on established law. But maybe they’ll just run right over it. It certainly does look that way.”
Jake Blumgart is a reporter and editor based in Philadelphia. He contributes to publications including Slate, Vice, Next City, the American Planning Association, and the Philadelphia Inquirer.