How the Friedrichs v. Calif. Teachers Association SCOTUS Case Could Actually Be a Boon for Unions
December 16th, 2015 | Shaun Richman
As unions file
their legal briefs in the epic Friedrichs vs.CTA anti-union Supreme Court case, one clever legal scholar
argues that Friedrichs is “an unexpected tool for labor.”
University of
Chicago Teaching Fellow Heather Whitney’s forthcoming paper in
the NYU Journal of Law and Liberty makes a
compelling case that an adverse decision in Friedrichs would hand unions a
first amendment argument to refuse to represent non-members. And, as I have
argued, that is a roadmap to union
competition at workplaces, competing demands on individual employers and the
end of contractual no-strike agreements.
Chaos, in other
words—and just the sort of chaos that this attack on unions deserves in
response.
Friedrichs and labor’s
response
The FirstAmendment is at the heart of the Friedrichs case. It is a
right-wing argument that public sector employers (in other words, the government) violate individuals’ First
amendment rights by compelling employees, through contracts negotiated with
unions, to pay a fee to a union. Currently, unions that are certified to
represent a group of employees in a bargaining unit are legally compelled to represent
all of the employees in that unit. That means not just bargaining on their
behalf, but expending significant resources on grievances, meetings,
communications and everything else that goes into running a union.
But union membership, including the payment of dues, is
completely voluntary. That’s why unions negotiate agency fees into contracts.
These fees are calculated through complicated formulas to only represent the
true cost of bargaining representation. Agency fees do not pay for things like
political activity (unions usually have separate voluntary political funds).
But the
Friedrichs case argues that any interaction that a union has with the
government, including bargaining, is inherently political. Agency fees,
therefore, are compelled political activity.
This ridiculous
argument is only before the Supreme Court now because Justice Samuel Alito
inserted the issue into last year’s otherwise unrelated Harris Vs. Quinn case. That case was
only a partial defeat for unions, as Alito lacked the fifth vote to totally do
away with agency fee in the public sector. In his written decision, Alito
basically solicited for someone to bring a case with exactly Friedrichs’ set of facts, and it has raced up
to the Supreme Court. This is the stuff of a vast right-wing conspiracy.
Unions have
mounted an excellent legal case, backed up by a broad array of supporting
briefs. A ruling against the unions would reverse a 37-year-old precedent. The
Supreme Court is supposed to be guided by the principal of stare decisis, which is essentially to let
long-settled precedent stand. And finally, the case will be decided in the
middle of a presidential election that is already turning on questions of
inequality and workers rights. In his handling of the Obamacare and gay
marriage cases, Chief Justice Roberts has shown that he does seem to care about
his legacy. Would he support such a nakedly partisan political move by his
Court in this election cycle?
So, on the facts,
on the law and on the politics, unions really ought to win this case. And, to
be clear, agency fee and exclusive representation are worth defending. They
create the conditions for tremendous worker power at workplaces that have both.
But if unions
lose agency fee, then exclusive representation no longer makes sense. This is
not simply because of the free-rider problem that will drain union resources.
It is because exclusive representation is essential to labor peace, and a Friedrichsruling that guts union rights is
the clearest signal that the billionaire class does not want—nor does it
deserve—any kind of peace.
Labor’s First Amendment rights
If the Supreme
Court rules that every interaction that a union has with its government
employer is inherently political, Heather Whitney argues in her article, then
that would open the door to unions claiming their own First Amendment right—to
choose who they represent. In other words, if agency fee is compelled speech,
then the duty of exclusive representation imposed on unions is also compelled
speech.
Imagine a group
of registered nurses at a public hospital who want to bargain for much larger
raises than the rest of the members of the bargaining unit. Or imagine a group
of young workers who want to bargain away pensions in exchange for larger
salaries in the here and now. (Forget for the moment that both scenarios are
just bad unionism.) Once these contract demands are considered by the Court to
be political speech, then the fact that these workers are compelled by the
government to represent workers who disagree with them, and who could outvote
them, is a violation of their First Amendment
rights!
I’ll also point
out that unions’ rights to freely engage in actual political speech is already
impeded by the duties of exclusive representation. Unions are politically
cautious and loathe to wade into non-economic controversies for fear of
alienating a segment of their bargaining unit. For instance, most unions were
slow to oppose the wars in Afghanistan and Iraq for fear of alienating
bargaining unit members who were veterans or who had children in the military.
Even in a so-called “Right to Work” state, those people may not be members but
they could still express their displeasure by voting to decertify the union.
Does that not coerce unions into more limited political activity?
This is not an
abstraction. The day after the Friedrichs decision, if the
Court kills agency fee by making all public sector union work “political,” does
anybody doubt that the first time a non-member walks into a union office with a
grievance that she will be told, “Join the union or get the hell out of our
office?” And then we’ll be off to the races with a case that will go to the
Supreme Court to revisit exclusive representation in the public sector without
agency fee.
Then, the only
question would be whether the government has a “compelling interest in
requiring unions to negotiate and grieve their nonmembers’ complaints without
receiving just compensation.” And here scholarship would demonstrate that it
has been the employers’ preference to deal with one exclusive representative
because it is easier for them, and, as Whitney writes, “convenience is no
response to whether exclusive representation is properly tailored to the
government’s legitimate interest.”
Breaking the peace
So far, we’re
just talking about public sector unions because having the government as
employer, Alito’s right-wing conspirators argue, converts all of the activities
of those unions into inherently political acts. But if this Friedrichs logic takes hold, then arguably
having the government—in the form of the National Labor Relations Board—compel
unions to represent workers they would choose not to (and perhaps vice versa)
might become unconstitutional as well.
Currently, the
NLRB will only certify unions as exclusive representatives of all of the workers in a bargaining
unit, and only if the union can
win a majority vote. This is often an insurmountable threshold for unions to
reach in the face of intense employer opposition. In his 2005 book The Blue Eagle at Work, law professor and labor law
expert Charles J. Morris documented that in its early history the NLRB used to
certify minority unions as the bargaining agent for their members only. Morris argued that this pathway
was still technically open to unions to gain a foothold at a workplace and
legally compel an employer to recognize a non-majority union.
The modern NLRB
has dodged efforts by unions to get an advisory ruling on Morris’ theory. But
if the Friedrichs logic holds,
private sector unions may have a First Amendment challenge to the NLRB’s
continued refusal to grant certifications for just the members they choose to
represent.
And that, if
you’ll follow me down this rabbit hole, could spell the end of contractual
no-strike clauses. They would simply be unenforceable in an environment of
competing, non-exclusive, members-only unions. Workers would simply drop their
union memberships to participate in wildcat job actions. Or else join new
workplace organizations that have not signed agreements committing to labor
peace.
Don’t get me
wrong. I don’t have any fantasy of some huge wave of potential strike actions
that would occur tomorrow if only the enraged working class would stop being
“repressed” by current union leadership and our current collective bargaining
agreements. But these no-strike clauses go well beyond total shutdowns of
production to include all manner or slow-downs, work-to-rule and refusal to
carry out selective duties.
Any experienced
union rep reading this can recall at least one incident of having to talk his
members off a ledge—out of refusing a new duty or clocking out for lunch at the
same time. These actions would be concerted protected activity in a non-union
workplace, but under a “no-strike” contract could result in all participants
legally getting fired. How the hell are we supposed to get workers who don’t enjoy union protection fired up
about taking action against their bosses, when
their unionized peers can’t set any kind of example in terms of actually
enjoying their supposed protections?
It’s funny that
the First Amendment could make this possible. Union rights in this country are
not constitutionally rooted in the First Amendment, but in Congress’ power to
regulate interstate commerce—which is one of the reasons that our labor laws
make no damn sense. So, yes, Friedrichs could be a useful
tool for labor by finally connecting our work to our rights of free speech and
free assembly.
But if you’ve
followed me down this rabbit hole and are starting to get a little excited
about a possible post-Friedrichs world, let me give you an “on the other hand.” Heather Whitney’s
First Amendment argument for ending the duty of exclusive representation would
come before a Court that would not be weighing it against a long-established
precedent as Roberts’ Court is considering Freidrichs. It will be
weighing the argument against a very recent Court decision.
If labor successfully causes enough chaos of the nature I’m
driving at—or even poses a credible threat to do so—don’t be surprised if the
Supremes try to put the lid back on Alito’s can of worms.
Shaun Richman is a former organizing director for the American
Federation of Teachers. His Twitter handle is @Ess_Dog.
MORE BY SHAUN RICHMAN
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