The Supreme Court Case That Could Strike A Fatal Blow Against Public Unions

Source: CGP Grey on Flickr. www.cgpgrey.com

On Monday, a landmark union dispute will go in front of the Supreme Court that will shape the future of the labor movement in America — and potentially strike a fatal blow to public sector unions, which have become the last bastion of widespread union membership in the United States.

Rebecca Friedrichs is a teacher in a California public school and, because of that, someone who must pay union dues to the California Teachers Association. She’s arguing that she should not be compelled to pay dues that go toward collective bargaining because, for public sector unions, those questions are inherently political.

Courts have repeatedly held that unions cannot compel union dues to be used for political activities — so issue campaigns, voter organization, electioneering and other politicking must be funded through voluntary dues. But they’ve protected compulsory dues for unions that go strictly towards collective bargaining “agency fees,” as they’re commonly called.

Friedrichs and the plaintiffs are arguing that compulsory agency fees for public sector union workers are an unconstitutional infringement on her First Amendment rights not to support political speech she disagrees with. Questions about the collective bargaining of public sector workers, the argument goes, is inherently political. They’re all questions of what the government will do with taxpayer dollars. This applies not only to salaries and pensions and other questions of compensation, but to things like tenure and disciplinary questions. Friedrichs argued to the Washington Post recently that last-in first-out policies that privilege seniority over performance are political when they come to taxpayer-funded public school teachers.

The public sector is the last bastion of powerful unions in the United States. Membership in private sector unions has been steadily declining for years. Only around 6% of private sector workers belong to a union. Public sector union membership has remained strong, however, hovering in the mid-30% range for decades. And even though the political activities of these unions are not compelled to be supported by their members, public sector unions — The AFSCME, the National Education Association, and the American Federation of Government Employees, among others — are some of the most powerful political forces in America. A blow to their ability to collect dues from their industry workers, no matter what cause they go toward, might mean that public sector union membership sees a decline that would mirror what has happened in private sector unions over the last fifty years.

The distinction between union dues for politicking and the agency fees at the heart of the Friedrichs case was put in place by Abood v. Detroit Board of Education in 1977. The plaintiffs on Monday are essentially asking the Supreme Court to go against that precedent to rule in their favor.

The Supreme Court has shown a willingness to revisit the idea of compulsory agency fees in recent years, though they’ve resisted revisiting Abood. 2014’s Harris v. Quinn struck down such fees for personal health assistants, whose employment status hovered in a realm in between public and private employees. The Supreme Court ultimately ruled in Harris that the personal health assistants were not public employees and not subject to Abood, despite the plaintiffs arguing in the case that Abood should be overturned entirely.

Given the broader political context of what has happened to the power of unions in America over the last few decades, it’s understandable why Friedrichs v. California Teachers Association has become such a lightning rod. The massive decline in private sector union membership is something that public sector unions are looking to avoid at all costs, but if Rebecca Friedrichs’ argument in favor of her First Amendment rights is something the Court accepts, public sector unions will be facing exactly that grim future.

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