SCOTUS Considering Case Which Would Effectively Cripple Public Sector Unionism

He's only Alito bit right-win...

Last week, an appeal was made to the Supreme Court in Friedrichs v. California Teachers Association (CTA), a case that could severely weaken the power of public sector unions.  The case invovles a California elementary school teacher who does not want to pay $650 in annual “fair share fees” to the CTA for costs associated with collective bargaining and administration.  

The well-coached Friedrichs, whose case is supported by the Center for Individual Rights (CIR), recently said in an interview, “I am not a member of the union, and I’m opposed to forced fees and forced unionism.”  

If the Supreme Court rules in her favor they will be overturning the landmark decision in Abood v. Detroit Board of Education. The 1977 case established “fair share” fees.  Conservatives on the court, such as Samuel Alito, have been taking subtle shots at Abood in a range of opinions dealing with unionism.  The court’s conservative majority was all but built for the CIR, as In These Times’ Moshe Marvit explains:

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.

The petition filed by CIR asks the court to rule on the following two first amendment based 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 to the court makes the recycled 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.”  Using this argument the CIR will contend that given the Supreme Court’s view of money as free speech, “workers who have to pay a fair-share fee are being compelled to lobby the government on an issue they may disagree with.”  In an opinion he wrote last year, Alito asserted that “the bedrock of the first amendment” is, ”no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

While the cards seem to be stacked in conservatives’ favor, Seattle University School of Law Professor Charlotte Garden told Marvit, “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.”

The Supreme Court has yet to say if it will hear the case.  A ruling in favor of Friedrichs could mean agency fees will remain, but everyone will be forced to opt-in, which would stifle public sector unionism. Worse, the fees could be eliminated altogether.  Still, even a decision to hear the case would signal anew how far things have fallen in terms of the judicial branch’s concern for workers’ rights. The slow bleed bleeds on.

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