Judging by questions they asked Jan. 11, it appears that a 5-4 majority of the U.S. Supreme Court is about to rule that public employees don’t have to pay anything to the unions that represent them. Such a decision would weaken public-sector unions considerably, with far-reaching consequences for the American labor movement.
In the case — Friedrichs vs California Teachers Association — plaintiffs seek to overturn a 1977 Supreme Court decision called Abood vs. Detroit Board of Education. In Abood, the Court said that it would violate the First Amendment if public employees were required to pay for a union’s political speech. That’s why today in states that allow public-sector collective bargaining, union-represented public employees who object to union political stances may opt out of union membership and dues and instead pay a lower “fair share” fee that pays just for bargaining and enforcing the union contract. Now, in the Friedrichs case, the Court is being asked to rule that public employees shouldn’t be required to pay for collective bargaining either — even though they benefit from the contract and a majority of their co-workers have voted for union representation.
When the Court heard oral arguments in the case Jan. 11, the lawyer for the anti-union side argued that when you are talking about public employees, even something like collective bargaining is inherently political, because the salaries and benefits that the union is negotiating come out of the public budget.
In response, the Court’s liberal justices mostly addressed the practical consequences of overturning 40 years of legal precedent.
“There are tens of thousands of contracts with these provisions,” said Justice Elena Kagan. “Those contracts affect millions of employees, maybe as high as 10 million.”
Central to the Abood decision was the Court’s acknowledgement of the “free rider” problem: People may not want to pay for something if they think they can get it for free.
Chief Justice John Roberts seemed to dismiss that as a concern, telling California state attorney Edward Dumont: “If your employees have shown overwhelmingly that they want collective bargaining, then it seems to me the ‘free rider’ concern … is really insignificant.”
“Many people can want something,” Dumont replied, “but if they are given a choice, they would prefer to have it for free, rather than to pay for it.”
The Friedrichs case follows closely a case from two years ago, Harris v Quinn, in which the court barred state-paid home care workers from any requirement to pay union dues. The court didn’t rule on the First Amendment question then, concluding instead that the home health aides were not actually public employees. Justice Samuel Alito wrote the opinion for the majority in the 5-4 ruling, and spent most of the ruling calling Abood into question. That opinion is what prompted Friedrichs — a tailor-made case in which anti-union groups recruited California teachers as plaintiffs, and then rushed the case through the courts in hopes of challenging Abood at the Supreme Court.
The union position was supported by more than 24 briefs filed by hundreds of individuals and groups representing all levels of government, public officials, civil rights organizations, academic experts, and others.
Multnomah County Commissioners Jules Bailey and Judy Shiprack were among 28 public officials and 27 cities and counties that signed one such “friend of the court” brief urging the Court not to overturn Abood.
The Court will issue its decision by the end of June.
