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The Supreme Court Case That Could Gut Public Sector Unions

A case going to oral arguments today will have implications far beyond that of free speech.

Spencer Platt / Getty Images

On Monday, January 11, the Supreme Court will begin hearing oral arguments in Friedrichs v. California Teachers Association, a case that began working its way through California courts in the spring of 2013. Ostensibly concerned with protecting the free speech rights of public sector workers, Friedrichs’s outcome will in reality decide the viability of public sector unions in the future.

The original plaintiffs are ten California teachers and Christian Educators Association International, an organization of Christian teachers in public and private schools that advertises itself as “an alternative” to the National Education Association, the country’s largest union, and “their affiliates.” The Center for Individual Rights, a law firm devoted to fighting what it characterizes as the “increasingly aggressive and unchecked authority of federal and state governments,” filed the suit on behalf of the teachers and the CEAI to challenge “the constitutionality of California’s ‘agency shop’ law,” which, according to the plaintiffs, violates the First Amendment by requiring non-union public sector workers to nonetheless pay agency fees. Defendants in the case are the NEA and the California Teachers Association, an NEA affiliate.

At the core of the case are “agency fees,” sometimes called “fair share fees.” Agency fees work like this: Public sector unions are required to cover all employees in a given bargaining unit, whether the employees opt into union membership or not. Public sector employees (which include EMTs, firefighters, public school teachers, social workers, and more) thus pay agency fees to their respective unions even if they are not union members, because public sector unions work on behalf of everyone in their bargaining unit, not just union members. 

Agency fees do not fund unions’ political activities, but rather strictly the costs of union grievance-handling, organizing, and collective bargaining. In the 1977 case Abood v. Detroit Board of Education, the Supreme Court upheld the right of public sector unions to extract agency fees from public sector workers, and found that agency fees do not violate employees’ freedom of speech, so long as they do not fund unions’ political activities.

But conservative Supreme Court Justice Samuel Alito has long signaled that he would attempt to overturn Abood given the chance. With Friedrichs, his moment may have arrived.

This time around, the plaintiffs have argued that virtually everything unions do is by nature political, even collective bargaining for better wages and benefits. As the CIR puts it: “Collective bargaining is inherently political.” Organizations filing amici briefs on behalf of the plaintiffs include the National Right to Work Legal Defense Foundation, the Cato Institute, and the Pacific Legal Foundation; meanwhile, several Koch-funded groups have made grants to the CIR itself. The ACLU, a classic supporter of free speech rights, has signed onto only one brief, on the side of the CTA. Organizations filing amici in favor of the CTA also include The National Fraternal Order of Police, the National Women’s Law Center,  and more than 70 civil rights groups.

In other words, though Friedrichs has been brought on behalf of teachers in the cause of free speech, its implications involve all public sector workers, and the matter at hand is really the weakening of public sector unions. If the court rules against unions’ right to collect agency fees, unions would still be obligated to bargain on behalf of and represent entirely non-paying employees. At that point, it would be reasonable for union members to leave their unions and keep their dues and representation, which would collapse unions under the weight of so many free riders. In essence, this case threatens to bleed unions’ financial resources while giving workers the option of contributing nothing to them.

On a press call hosted by the Alliance for Justice last week, experts and public sector workers reflected on what a loss in Friedrichs could mean for employees. Robert Bullock, a 35-year-old child protection worker from Massachusetts, recalled how his local union had advocated for cell phones and iPads for social workers who use them to call in case of emergency situations, and document their work digitally. “I’ve walked into homes and have seen children who have passed away,” he said. He added, “As a result of the trauma of the work there’s a very high turnover rate in our field,” which is why his union had also advocated for higher staff numbers to limit turnover and distribute caseloads. 

Vincent Variale, a New York Fire Department EMS lieutenant and September 11 first responder, explained that his union had advocated for protective gear like respirators and bulletproof vests that allow emergency personnel to work safely and efficiently in disaster zones and active shooting situations. Pankaj Sharma, a public school teacher in Skokie, Illinois, noted that his local had pushed for on-site childcare and parental leave, both massive gains for the majority of teachers who are women.

In fact, unions disproportionately benefit women, workers of color, and LGBT workers, said Sarah Leberstein, a senior staff attorney at the National Employment Law Project in Washington, D.C. “Unions have done a lot to shrink wage, salary, and benefit disparities for these groups,” Leberstein said. She noted that “African American union members earn 31 percent more than their non-union counterparts,” while “the gender wage gap for public sector unionized workers is about 50 percent smaller than that of non-union public sector counterparts.” 

Larry Mishel, president of the Economic Policy Institute in Washington, D.C., pointed out that the decline in unions has been linked to wage stagnation, growing inequality, and the overall slippage of the American middle class.

The ability of public sector unions to continue working at their current strength will rely on whether or not the left-leaning justices of the court are joined by a fifth vote. In a dissent joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor in the 2014 case Harris v. Quinn, Justice Elena Kagan argued that “the Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation.” And while Justices Alito and Clarence Thomas are almost sure to vote in favor of overruling the lower courts’ decisions against the plaintiffs, Justice Antonin Scalia has previously endorsed the logic of Abood, writing in a 1991 ruling that “where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost.”

But for the workers on the Wednesday call, the prospect of losing their unions was mostly distressing because of what it would mean for the communities they serve. “There are no shortage of challenges we currently face,” Sharma, the teacher from Illinois, said, “whether it’s kids coming to school with challenges at home because their parents are stretched thin, or our own issues of funding our schools and making sure we have the ability to help our students get a foothold in the middle class—and this would add to that challenge.” 

Variale added, “I think a negative decision, if they did that, it would limit our union’s ability to go to the table, provide the equipment that’s needed, to do the research, and get the experts to tell us what we need to protect ourselves and keep the public safe.”