Organized Labor’s Fight for Survival

On January 26, the Supreme Court received a petition to hear Friedrichs vs. California Teacher’s Association. Although the case is yet to be accepted by the Court and any possible ruling is at least a year away, SCOTUS-watchers are nonetheless on the edge of their seats. As it stands, Friedrichs threatens to deal the latest in a series of significant blows to the power and influence of labor unions in the United States The main issue at hand is the collective bargaining dues—fees paid by employees to fund negotiations between unions and management. In many states, public sector unions require all employees to pay these dues, regardless of whether they formally belong to the union. The plaintiffs, a group of teachers from California, claim that such required union fees are a violation of their free speech. Their grievances arise at a time when more and more states are adopting “right to work” laws, which forbid unions from forcing new hires to pay union dues as a condition of their employment. This particular landmark case could reinforce the remaining power of unions or significantly strip it away by nationalizing such “right to work” laws. Were the Court to pursue the latter option, the future power and influence of unions will be severely limited, restricting the degree to which they can ensure high wages and good working conditions for their members.

Unions have not always been as controversial as they are now. In the aftermath of the Industrial Revolution and the First World War, organized labor was largely viewed favorably and experienced significant gains in membership, legal reach, and influence. Yet after the end of the Second World War, this trend began to reverse. The Taft-Hartley Act, passed in 1947, was the first major blow delivered to unions following their rapid rise to significance under the administration of President Franklin Delano Roosevelt and his New Deal policies. Passed over President Harry Truman’s veto by a Republican-controlled Congress, The Act restricted the ability of unions to lobby for political purposes and limited closed shops, which is an agreement whereby an employer agrees to only employ union members. While it may not have destroyed the national union effort overnight, the Taft-Hartley Act does mark one of the first major limitations on unions since they took hold in the United States. Becoming a law shortly before unionization rates reached a peak in the mid-1950s, it stands as the turning point in American attitudes towards unions.

Despite the reversal in public unions’ legislative fortunes after Taft-Hartley, the judiciary has preserved the power of organized labor in various ways. Union leaders still play a big role as negotiators on behalf of the rights and fair treatment of workers, a prerogative that the Supreme Court upheld in the 1977 case Abood vs. Detroit Board of Education. Much like Friedrichs, Abood saw public school teachers in Detroit try to bypass union dues on the grounds that they disagreed with collective bargaining and with the ideological positions of the union. The Supreme Court ruled that while non-members of unions could opt out of fees associated with political lobbying, they could not opt out of those fees that contribute to collective bargaining. The Court’s reasoning was that such collective bargaining fees positively affect even non-members by securing better working conditions and higher wages for all laborers regardless of union participation.

The ruling in Abood vs. Detroit Board of Education set a precedent from which the Supreme Court did not depart for almost 40 years, despite the growing unpopularity of unions. However, in the summer of 2014, the Supreme Court’s decision in Harris vs. Quinn threatened Abood by chipping away at the power of organized labor. The plaintiffs in the case were home-care workers who did not want to join a union, going against the will of the majority of their coworkers. While the resistant employees were not obligated to join, they were nevertheless required to contribute a collective bargaining fee to the union. The plaintiffs argued that making workers pay fees to a union they oppose is in tension with their first amendment rights to free speech, since the First Amendment can be construed to protect freedom of association as a subset of speech. Therefore, people can’t be forced to associate with an organization with which they disagree. In turn, it is arguably unconstitutional to require non-union members to associate with a union by forcing them to pay collective bargaining dues. On the other side, the defense argued that without union fees, workers that opt out of unionizing become free riders; although they do not pay for the collective bargaining that unions engage in, collective bargaining often results in better working-conditions for all employees – including those who are non-union. In other words, workers who refuse to pay union dues are essentially getting a cost-free benefit from which they cannot be excluded. This is the reason why, for the past 40 years, the U.S. has maintained a legal precedent that workers cannot be forced to join a union or contribute to their political motives, but they can be required to pay collective bargaining or agency fees. However, the Supreme Court’s opinion in Harris vs. Quinn espoused something different: the Court voted 5-4 that, in some cases, unions cannot require even agency fees from a particular class of workers that do not want to join the union. The ruling was decidedly narrow, specifying only a certain category of workers that can be exempted from collective bargaining fees, but it serves as the bedrock on which Friedrichs might build.

Either way, if the Supreme Court decides to hear this case, the ruling will probably deprive unions of the power to prevent free-riders, and they will therefore become much more inefficient and less able to influence outcomes.

The arguments in Friedrichs vs. California Teacher’s Association are much the same as those in Harris v. Quinn, causing the Ninth U.S. Circuit Court of Appeals to expedite the case to the Supreme Court. After all, the holding on Harris vs. Quinn – as well as Justice Alito’s favorable view of the anti-fee, free speech argument – indicates that the court may very well be poised to decide on the issue of collective bargaining fees once and for all. Should the Supreme Court actually decide to hear this case, it is unlikely that they will rule in favor of the constitutionality of required collective bargaining fees – otherwise, there would be no point in revisiting established precedent. Instead, the Court will probably rule that either collective bargaining fees can remain, but only on an opt-in basis, or that collective bargaining fees should be eliminated altogether. The latter outcome would effectively nationalize “right to work” laws by forbidding unions in any state from requiring employee membership or dues as a condition of employment. Such nationalization would reflect the most radical change in labor laws in decades, and would result in an immense loss of union power, membership and resources. Even the former ruling would have a significant impact on unions, by forcing them to spend even more resources on collective bargaining than they already do. Either way, if the Supreme Court decides to hear this case, the ruling will probably deprive unions of the power to prevent free-riders, and they will therefore become much more inefficient and less able to influence outcomes.

In the wake of the Industrial Revolution Americans began to recognize the importance of organized labor. The growing strength of firms’ bargaining power in the labor market manifested as unsustainable wages and less-than-desirable working conditions, thereby posing a significant threat to the wellbeing of workers. Maybe it is the case that unions were so successful at negotiating away these problems that we have forgotten the dangers that accompany non-unionized workplaces. It certainly seems as if the workers who currently claim to want nothing to do with unions have forgotten, for they are still benefitting from better wages and working conditions negotiated on behalf of all laborers by unions. Yet the moment that free riding is allowed, the remaining strength of public sector unions will dissipate and the benefits that they acquired for laborers will begin to fade. In deciding Friedrichs vs. California Teacher’s Association, the Court should return to and reinforce the precedent set in Abood vs. Detroit Board of Education instead of expanding on the ruling it made in Harris vs. Quinn. Likewise, the country should recognize the amount of good unions have accomplished instead of taking them for granted.