On Jan. 11, the United States Supreme Court will begin hearing oral arguments in one of the most significant cases of this term: Friedrichs v. California Teachers Association, a nearly three-year long legal showdown between organized labor and its most implacable foes.
At stake is whether public sector unions can constitutionally charge “fair share” fees to non-union members of the workplaces they represent. The contract that a union negotiates with the management of any given shop applies to all employees, union and non-union alike. As a result, unions in 25 out of 50 states are permitted to charge non-union workers for the expenses associated with representing them. If the court rules that these fees are unconstitutional, the long-term health of American public sector unions could be in jeopardy.
Rebecca Friedrichs, a California schoolteacher and the lead plaintiff in the Friedrichs case, filed in April 2013, argues that the fees imposed on her by the California Teachers Association infringed on her First Amendment rights because they compel her to subsidize the activities of a political organization. If the Court sides with Friedrichs, then no public sector union in the U.S. would be permitted to charge “fair share” fees. That would make it so all 7.2 million public sector union members operate under “right-to-work” rules.
These fees are already banned in 25 states by so-called right-to-work laws, and union membership has declined in those states where they have taken effect. If those rules cover the entire public sector, unions fear they will take a serious blow in the one sector of the economy where they have been able to maintain strength. Whereas only 6.6 percent of private sector workers are unionized, according to the most recent figures from the federal Bureau of Labor Statistics, more than one-third of government employees are in unions — for now.
Organized labor, its allies, and their opponents have all taken note. The evidence is in the 58 amicus briefs filed in the Friedrichs case, according to the tally on the website SCOTUSBlog, which tracks Supreme Court cases and related filings. Only the affirmative action case Fisher v. University of Texas at Austin, with 92, has drawn more amicus briefs in this term. Overall, the median number of amicus briefs filed per case this term was just three.
Most amicus briefs don’t have much of an impact on the outcome of a case, but they do indicate whose interests are at stake.
Not surprisingly, the major public sector unions, including the American Federation of Teachers and the National Fraternal Order of Police, and the AFL-CIO, the biggest U.S. labor federation, filed briefs in support of the California Teachers Association, urging the Court not to eliminate representation fees.
Friedrichs and the other petitioners, meanwhile, won support from libertarian think tanks such as the Cato Institute and Michigan’s Mackinac Center and business groups such as the National Federation of Independent Business (NFIB).
Karen Harned, executive director of NFIB’s Small Business Legal Center, said that excessive influence of public sector unions harms the interests of small businesses. “They’re basically going to the trough, using the money they’re getting from all their members to raise the amount of money the state has to give them,” Harned said of public worker unions. “And who’s ultimately going to be paying that bill? The small business owner."
Some labor experts say business groups, in particular, are sensitive to the broader significance of the Friedrichs case: a blow to unions in the public sector could also weaken the union movement in the private sector. Paul Secunda, the director of Marquette University Law School’s Labor and Employment Law Program, noted that Wisconsin Gov. Scott Walker first moved to limit the collective bargaining rights of public sector unions before signing a right-to-work law in 2015 that affected unions in both sectors. “You can’t separate public sector unionism from private sector unionism,” he said.
Harned denied that NFIB’s position on Friedrichs is linked to concerns about private sector unions. “I don’t think we went into it really thinking so much on the private sector front,” she said. “It’s really more about a bloated state government.”
Not all the amicus filings were split along typical conservative-liberal lines. A group of 47 current and former Republican state legislators, and one former member of Congress, filed a brief in favor of the California Teachers Association, arguing that instituting right-to-work rules should be left to individual states. A ruling in favor of Friedrichs, they wrote, would be “inconsistent with the significant deference long accorded state determinations about how labor relations in public sector employment should be ordered.”
“We were very gratified that it’s not the unions on one side of this, but that a lot of folks say this just makes sense in terms of managing the workforce that they have,” said Lily Eskelsen García, president of the National Education Association (NEA).
If those arguments fail and the Court sides with Friedrichs, it won't be a “death knell” for public sector unions, said Secunda, the labor law professor. But will make the model under which they currently operate less sustainable.
“We're really at an important point here where unions are on the ropes,” Secunda said. “They're taking blow after blow.”