SCOTUS Comes Calling on Public Sector Unions

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AP Photo/Nick Ut

The Supreme Court was dishing out win after win for liberals: Affordable Care Act subsidies upheld; same-sex marriage made the law of the land; a legal blow administered to the undemocratic process of gerrymandering. But through it all labor activists were holding their breaths as a case that could decimate public sector unions inched perilously toward the Supreme Court.

Then late last month labor's worst fears were realized when the Court announced that in its 2015-2016 session it will hear Friedrichs v. California Teachers Association, a case that centers on the constitutionality of so-called "agency fees," which require non-members to pay fees related to union bargaining and member representation efforts.

"This is a very significant case. It may well be life or death for the unions," Harvard Law School professor Benjamin Sachs told the Los Angeles Times. "This is asking the court to essentially hold that 'right to work' [receiving union benefits without having to pay union dues] is a constitutional requirement in the public sector."

Since unions legally must bargain for all workers they represent, the fees have traditionally been a way public sector unions can avoid the "free-rider" problem-essentially ensuring that workers who benefit from collective bargaining and union representation in their disputes with managers, but don't pay member dues, are still contributing something for the benefits they receive.

In challenging this fee structure, the Friedrichs case has the potential to overturn decades of legal precedent that has become intractably embedded in union strategy-and state law.

"The Supreme Court is revisiting decisions that have made it possible for people to stick together for a voice at work and in their communities-decisions that have stood for more than 35 years-and that have allowed people to work together for better public services and vibrant communities," leaders from the American Federation of Teachers, National Education Association, California Teachers Association, Service Employees International Union, and American Federation of State, County and Municipal Employees said in a joint statement.

The precedent goes back to 1977 when the Court ruled in favor of the "agency fee" arrangement for public sector unions in a case called Abood v. Detroit Board of Education. That decision said that because a union must "fairly and equitably…represent all employees," fair-share fees have "been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become 'free-riders'…"

Workers represented by unions are required to pay for costs attributed only to collective bargaining and worker representation efforts, not any political activities.

But Rebecca Friedrichs, a teacher from Orange County, California, and the plaintiff in the Court's upcoming public sector union case, see things differently. Together with the Center for Individual Rights (which has been key to pushing this through the courts), she argues that such fees amount to compelled association and thus an abridgement of her freedom of speech rights.

Just last year the Supreme Court heard a similar case. In Harris v. Quinn, a 2014 case over whether Illinois home-care workers are public employees and subject to agency fees, the Court ruled that these workers are not required to pay such fees.

Many court-watchers say that ruling offers numerous indications as to how Friedrichs could play out. As David Savage points out in the Los Angeles Times, the Harris decision was narrow and "skirted the broader issue of whether all mandatory fees were constitutional, but opened the door for the next case, Friedrichs vs. California Teachers Assn., to challenge the forced fees on free-speech grounds."

"Except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support," Justice Alito wrote in the majority opinion. Alito has also questioned the solidity of Abood's legal precedent, and all but invited union opponents to file a case challenging the decision. Friedrichs is that case.

While agency-fee payers are by no means a large portion of public sector unions' revenue stream, in a time of already dwindling membership rolls budgets don't have a whole lot of cushion.

Of those represented through California Teachers Association contracts, roughly 9 percent-31,000-are agency–fee payers covered by its contracts, as opposed to the 325,000 teachers covered by its contracts as CTA members. CTA's national affiliate, the NEA, has about three million members and counting-only 90,000 are agency-fee payers.

About 8 percent of those represented by AFT and SEIU are agency-fee payers. Ninety-one percent of public-sector workers covered by union contracts are union members. In both the AFT and SEIU, 92 percent of those covered are members.

Whereas Harris only threatened the member bases of SEIU and AFSCME, which have unionized large numbers of home-care workers, this time around all unions with public sector workers are exposed. The challenge now for public sector unions is to reach out to as many fair-share workers as possible and convince them to join as a full union member. The larger challenge is to reinvest in member relations so if the case does go downhill, fewer members will be enticed to become free-riders.

In short, there's work to be done at home. These unions are embarking on what could be characterized as re-organizing campaigns-shoring up its bases in a pinpointed, hyperlocal manner. Union officials recognize that they must increase their union's presence in and relevance to their members' work lives-and not just during contract negotiations.

In The Washington Post, Lydia DePillis has chronicled how the looming Friedrichs decision has lit a fire underneath the public sector unions' organizing departments-most notably AFSCME, which has the highest public sector membership density of any major union. AFSCME President Lee Saunders told DePillis, "I think we took things for granted. We stopped communicating with people, because we didn't feel like we needed to. That was the wrong approach and we don't want to fall back into that trap."

AFT is charging up its local organizing efforts as well. It has analyzed which states and industry sectors under its coverage have the greatest concentrations of agency-fee payers and targeted its efforts there.

"As the attack on labor has intensified by those who don't want working families to have a voice and has moved from the statehouse to the courthouse," AFT President Randi Weingarten said in an e-mail statement, "our affiliates understand that engaging our communities and our members and organizing new members is the key to repelling those attacks and growing a strong middle class." She points to the Washington Teachers' Union, an AFT affiliate, which convinced 1,500 agency-fee payers to convert to full membership.

Over the past four months, the National Education Association (NEA) has also been ramping up targeted organizing drives. Organizers have already converted 13,000 fair-share payers, with a total goal of 45,000 new full members by January. "We do more listening than we do pitching," says Jim Testerman, NEA's senior director of organizing. "They tell us about the work that they care about and we connect our own work to that."

For unions like SEIU that are active on numerous fronts, dealing with this development will likely be more complex. The union is still reeling from the blow dealt to its revenue stream as a result of Harris. It is also stretched across the landscape of organized labor more than any other union-and must allocate its resources thoughtfully because of that. The union is betting heavily on the success of its Fight for 15 campaign, which is unlikely to reap any fiscal returns anytime soon (unless it attracts some big money donors). It also continues to roll out its ambitious nationwide adjunct faculty unionization effort. The question is, how can SEIU continue to devote the resources it's been spending on these activities if it has to devote mega-resources to sustaining its public sector membership?

Meanwhile, if you haven't heard, 2016 is coming soon. And national labor unions are sure to spend heaps of money on not only the presidential election, but also a slew of Senate, House, and state races in an effort to stem the rising tide of anti-worker Republicans.

But moving back to the more immediate shadow that Friedrichs now casts over labor, early outreach in California-ground zero for any outcome-is even more crucial. The CTA is most likely to be impacted by a conservative ruling, no matter how narrow, and so it too is reinvesting in its rank-and-file.

"We're hoping for the best outcome, and preparing for the worst outcome," says California Teachers Association spokesperson Frank Wells. The union is reiterating to its local chapters the importance of membership engagement, and is actively reaching out to non-members. "If in fact the Court does rule against us, we'll have a robust and actively engaged leadership," Wells says.

It is still very early for speculation regarding how the Court will come down-things will become much clearer once arguments begin. However, it does appear that Justice Scalia may be the deciding factor, which makes this all the more disconcerting for labor.

In past decisions Scalia has voiced his support for fair-share payments, but seemed to have contradicted himself when joining the majority in Harris v. Quinn. But as law professor Catherine Fisk explains at the blog On Labor, Scalia noted in the opinion that the union's role in enforcing the contracts of free-riding home-care workers was negligible. Not so in Friedrichs-teachers unions are obligated to enforce the far more extensive rights of non-member teachers, Fisk contends. "It's not at all clear that the Court's decision to hear Friedrichs will lead inevitably to the Court holding that all public sector employment must be on a right-to-work basis. The Court may instead decide simply to reaffirm Abood because it is the best compromise among the First Amendment rights of unions, union members, and employees who oppose the union that represents them."

"All we know is that four people voted to accept the case," says Craig Becker, general counsel for the AFL-CIO, which will be very active in the legal preparation for the case. "Our job is to make the best possible argument."