Last week, an appeal was sent to the U.S. Supreme Court for a case that could prove to be the most damaging case to labor in decades.

Friedrichs v. California Teachers Association aims to overturn a nearly 40-year precedent which allows the use of “fair share” fees for public sector unions, wherein all union members must pay for the costs associated with collective bargaining and contract administration. Since all workers in unionized workplaces share the benefits of unionization—and since unions are legally compelled to represent all of those workers, which requires use of unions’ financial resources—unions say that workers who choose not to become members of unions must at least pay these fees in order to not become “free riders,” gaining benefits from union representation without paying for them.

From its beginnings, the case has been specially crafted for the Supreme Court, and if successful would affect tens of thousands of union contracts and would force millions of public employees into a right-to-work model.

Justice Alito has been inviting a case like Friedrichs for several years, and anti-union groups have been paying attention. In the 2012 Knox v. SEIU decision, which changed the way in which public sector unions assess optional fees (those not associated with collective bargaining, such as political and public relations activities and other matters not related to collective bargaining)  from an opt-out to an opt-in procedure, Justice Alito, writing for the Court, said that “acceptance of the free-rider argument as a justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly.”

At the time, many understood this statement to indicate that the free-rider and labor peace arguments propounded by previous Supreme Court decisions were no longer enough to convince the Court’s conservative majority of the justification for the allowance of fair share fees. Writing about the case for the New York Times, Linda Greenhouse recognized that “the issue in Knox seemed narrow, even arcane”; however, she explained, the decision set the stage for a full frontal assault on labor using the First Amendment.

In case his message in Knox wasn’t clear, Alito left no room for misinterpretation in his Harris v. Quinn decision last year.

In Harris, the Court held that home healthcare workers were not “full-fledged public employees,” and therefore the 1977 Abood case, which explicitly permitted fair-share fees for public sector workers, was inapplicable.

Alito could have stopped there, but instead he decided to thoroughly trash Abood and indicate that it is ripe for overturning. In paragraph after paragraph, Alito wrote that the Abood Court’s “analysis is questionable,” “seriously erred,” “fundamentally misunderstood,” “failed to appreciate,” “does not seem to have anticipated,” “did not foresee the practical problems,” and “a critical pillar of the Abood Court's analysis rests on an unsupported empirical assumption.”

Alito was essentially begging for someone to petition the Court with a case that would allow the justices to address the First Amendment issues involved in fair share agreements.

In April 2013, the right-wing Center for Individual Rights (CIR), whose mission is to “aggressively litigate and publicize a handful of carefully selected cases that advance the right of individuals to govern themselves according to the natural exercise of their own reason,” filed such a suit on behalf of a handful of California teachers and a Christian educator organization. The case then began its race to the Supreme Court.

In federal district court, the CIR took the unusual step of filing a motion arguing that the court should rule in favor of the union. The group did this because they knew that the law is not on their side: Under current Supreme Court precedent, the CIR would lose in front of a California judge, since the district court must follow the law. But CIR is banking on the Supreme Court changing the law. The District Court obliged them by ruling for the union, which allowed the CIR to quickly appeal the case to the Ninth Circuit Court of Appeals. At the Ninth Circuit, the CIR took the same tack, asking the court to quickly rule in favor of the union so it could get the case before the Supreme Court.

This week, approximately a year and a half after the complaint was first filed in district court, the CIR filed its petition to the Supreme Court. Though the Court may decide not to accept Friedrichs if four justices do not vote to hear it, this case looks like exactly the sort that Justice Alito could use to finally usher in a national public right-to-work law from the bench.

In its petition to the Supreme Court, the CIR asks the Court to rule on two related First Amendment questions: (1) whether the agency shop (a workplace that permits fair-share fees) should be ruled unconstitutional under the First Amendment, and (2) whether it violates the First Amendment to require public employees who don’t want to join their unions to opt out rather than requiring everyone to opt in.

The petition then proceeded to rehash the old argument that all the bargaining issues for public sector unions are inherently political, and therefore all such workers should be under a right-to-work model. In essence, the CIR argues that any bargaining for increases in worker pay or benefits, or negotiations over work conditions, are inherently ideological issues that not all workers may agree on, and such negotiations are identical to lobbying.

Therefore, because money is equivalent to speech in the Supreme Court’s view, workers who have to pay a fair-share fee are being compelled to lobby the government on an issue they may disagree with.

Seattle University School of Law Professor Charlotte Garden told In These Times that although there are some superficial similarities between lobbying and public sector collective bargaining, there are critical differences.

“First—and most important to the Friedrichs case—unlike lobbyists, unions owe a duty of fair representation to all of the workers they represent, which means they (unlike lobbyists) have to spend money representing non-members,” Garden says.

“Second, the scope of bargaining is circumscribed by governments themselves—governments decide under what conditions they will bargain with unions, and unions are constrained by those restrictions. So, for example, a government might limit collective bargaining to the subject of wages, but of course government can't limit the scope of what lobbyists can ask for.”

There is nothing new in the CIR’s argument, but it may succeed now because the Court’s views on the First Amendment and labor have changed dramatically over the years. 

The Roberts Court has used the First Amendment in a manner that significantly advances corporate interests—from striking down campaign finance limits in Citizens United and related cases to striking down laws that limit pharmaceutical companies’ sale of doctors’ drug prescription data because they infringe upon corporate speech—and the Court’s decisions in Knox and Harris indicate that core union practices violate the First Amendment.

If the Supreme Court accepts this case, the decision could have enormous impacts on public sector workers by either allowing agency fees to remain but requiring all workers to opt in, or eliminating fair-share fees all together. That the agency fee in its current form could remain is possible, but unlikely—otherwise, the court would not have agreed to hear the case.

Professor Garden says that even the more limited opt-in ruling by the Court, which would require unions to obtain affirmative consent from non-member workers who are covered by the contract before charging them the optional portion of dues, could represent a significant drain on union resources. “This would mean that unions would have to go out and solicit workers to opt in—spending more organizing dollars on workers who are already covered by a union contract.”

If, on the other hand, the Court uses the First Amendment to declare all fair-share fees unconstitutional, it could represent the most radical shift in labor law in decades. Public sector unions, which represent one of the last bastions of strong unionism in the U.S., could lose millions of dollars through free riders, untold thousands of members and a significant portion of their already diminished institutional power.

Neil D. Lipton
Spivak Lipton LLP