A case that will soon be heard before the Supreme Court has the potential to institute a de facto right-to-work regime across the public sector. The court said on Tuesday it will hear arguments in Friedrichs v. California Teachers Association (CTA), a case concerning government employee unions' ability to gather fees from nonmembers.
Rebecca Friedrichs is a California public school teacher who has opted out of the CTA and argues the union should not be able to charge her representation fees. In California, as in half the other states in the country, unions may charge what are sometimes called fair share fees to nonunion employees in the workplaces they represent.
The plaintiffs in the Friedrichs case say these fees violate their First Amendment rights because they are effectively being forced to subsidize a form of political speech.
Twenty-five states already have right-to-work laws on the books, which forbid unions from collecting agency fees. If the court rules with the plaintiffs in Friedrichs, its decision could make the entire public sector right-to-work.
The National Right to Work Legal Defense Foundation — which filed an amicus brief in support of the petitioners — celebrated the lawsuit’s advancement in a Tuesday statement.
“The Supreme Court’s announcement that it will hear Friedrichs v. California Teachers Association is an important step towards finally respecting the First Amendment rights of America’s public servants,” foundation president Mark Mix said. “The question of whether teachers and other government employees can be required to subsidize the speech of a union they do not support as a condition of working for their own government is now squarely before the court.”
A favorable ruling for the plaintiffs would be a massive blow to the labor movement. Various studies have found that right-to-work laws on the state level tend to erode union finances, diminish their organizing capacity and ultimately drive down union membership. Right-to-work in the public sector would strike at the heart of America’s fading labor movement, which has held relatively strong among government workers even as the private sector union participation rate approaches single digits.
CTA member Brandon Andrews, who chairs his local chapter of the union at Francisco Bravo Medical Magnet High School in Los Angeles, said membership would decline if the court ruled against representation fees. Many teachers would stop paying dues out of the misguided belief that they would continue to earn decent compensation and workplace protections, he said.
“Quite a few people would opt out,” he said. “They’ve just gotten so comfortable with what they assume is always going to be there.”
But fewer members and a smaller budget would likely cause the quality of public sector union contracts to deteriorate, said Andrews. He said a court ruling against agency fees “would change the scope of what the union does currently.”
The central legal question in Friedrichs concerns the constitutionality of an earlier Supreme Court decision, Abood v. Detroit Board of Education. In that 1977 case, the court ruled that nonunion workers could not be required to subsidize political lobbying activities because that would violate their First Amendment rights; however, public sector unions may be permitted to charge nonmembers for expenses related to administration and contract bargaining.
But according to court filings submitted by the petitioners in the Friedrichs case, Abood should be overturned because “well-established precedent establishes that public sector collective bargaining constitutes core political speech about governmental affairs that is not materially different from lobbying.” In other words, public sector unions bargain over matters of public policy, so requiring workers to pay representation fees effectively forces them to subsidize political speech.
The court weighed overturning Abood as recently as last year. The June 2014 Harris v. Quinn ruling established that Abood did not apply to home health care workers or others who are “deemed to be public employees solely for the purpose of unionization and the collection of an agency fee.” The majority opinion, authored by Justice Samuel Alito, attacked Abood’s “questionable” reasoning at length but stopped short of overturning the precedent.
Legal experts such as Richard Hasen, a professor at the University of California at Irvine law school, speculated at the time that Alito used Harris to present “an anticipatory overruling” of Abood — to put it another way, that he used that case to lay the groundwork for eliminating Abood. The petitioners in the Friedrichs case repeatedly cite Alito’s criticism of Abood in court filings.
Seattle University School of Law professor Charlotte Garden said it was possible Alito originally intended to overturn Abood in his Harris decision but had to issue a more limited ruling after he failed to garner the support of a court majority.
“I think that’s why he wrote it the way he did — pages and pages of criticizing Abood and then shifting,” said Garden.
That does not make the court’s ruling in Friedrichs a foregone conclusion. But even its decision to hear the case has labor leaders extremely nervous.
“America can’t build a strong future if people can’t come together to improve their work and their families’ futures. Moms and dads across the country have been standing up in the thousands to call for higher wages and unions,” said Lily Eskelsen Garcia, the president of the National Education Association, in a statement on Tuesday. “We hope the Supreme Court heeds their voices.”