The Supreme Court held oral arguments Monday in its latest chance to gut unions and screw working people. The case: Friedrichs v. California Teachers Association. At issue: The plaintiffs, who were recruited by the far-right Center for Individual Rights, say that it’s a violation of their First Amendment rights to have to pay a fee for the services they get from their union, like collective bargaining and grievance representation. They don’t have to pay union dues, you see, they just have to pay a fee, called an agency fee or fair share fee, that covers the direct costs of representing them. But because the union spends other money—money from people who pay full dues—on politics, these plaintiffs feel they shouldn’t have to pay anything.
What’s at stake here?
One brief in the case indicates that in states where teachers are covered by collective bargaining but aren't forced to pay agency fees, about 34 percent are "free riders." Moreover, states that have the compulsory fees for workers have much higher union membership in the public sector—an average of nearly 50 percent—compared with states where such fees are banned (17 percent).
Those figures help to explain why this case is part of a concerted push by conservatives to sap the political clout of organized labor. In a new report on the case by the Century Foundation, a progressive think tank, senior fellow Richard Kahlenberg writes that Friedrichs can be viewed as "a naked political grab, one that seeks to undermine the power of collective action by hardworking Americans and weakening the ability for unions to promote the interests of workers' rights nationally."
There’s a long-standing Supreme Court precedent that agency fees are constitutional:
In the 1977 decision, Abood v. Detroit Board of Education, the Supreme Court made a distinction between two kinds of compelled payments. Forcing nonmembers to pay for a union’s political activities violated the First Amendment, the court said. But it was constitutional, the court added, to require nonmembers to help pay for the union’s collective bargaining efforts to prevent freeloading and ensure “labor peace.”
However, in 2014, the court ruled in Harris v. Quinn that “partial public employees” like home health aides didn’t have to pay the fees. That was widely seen as a step toward eliminating the fees for all public workers, and right-wing groups have pushed hard to make that happen. Like so many high-profile Supreme Court cases these days, Friedrichs is expected to come down to a 5-4 vote, but the expected swing vote comes from an unexpected source.
Antonin Scalia. He wrote in a 1991 case that, because the government requires public-sector unions to provide equal representation to nonmembers, it has an interest in making sure that service is paid for. “Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them,” he wrote.
Scalia has also argued that the government has much more leeway to exercise control over its employees than over private citizens, a view that could help unions. “Private citizens perhaps cannot be prevented from wearing long hair, but policemen can,” he wrote in a 1990 dissent involving public employees in Illinois.
Scalia voted with the majority in Harris, though, and he’s not exactly the guy you want to rely on for intellectual consistency over conservative expediency. Early reports out of the courtroom weren't optimistic.
