A 4-4 split Supreme Court on Tuesday left in place a lower court ruling that allows public unions to collect fees from non-members.
After arguments in January, it had appeared that a 5-4 court was going to strike down so-called “agency fees,” but the death of Justice Antonin Scalia in February upended the case.
The decision marks a victory for unions that was completely unexpected when the Supreme Court agreed to hear Rebecca Friedrichs’ case this past June, and the strongest sign yet of the changed composition of the court without Scalia.
The Supreme Court issued an opinion this morning in Friedrichs v. California Teachers Association, rejecting an attempt to restrict the rights of teachers, firefighters, police officers, nurses and other people who serve the public to band together in a union.
Nonetheless, dozens of cases like Friedrichs are working their way through the lower courts, with new lawsuits filed in Washington, Oregon and New York in February alone. The same handful of billionaires also is bankrolling efforts by state and local legislators to push laws making it harder for people to form unions.
A couple weeks ago (Issue 9.1.3), the 1021 NewsWire reported on the widespread labor movement pessimism surrounding Friedrichs v. CTA, the pending US Supreme Court case that could make this a right-to-work-for-less country.
Then along came In These Times. It’s nice to know someone in the media is actually reading the court briefs, thinking things through, and coming up with some of the most intelligent writing on the case anywhere. In the two articles below, the progressive publication forcefully argues that Friedrichs could actually backfire on the corporate right that spawned it and become the best thing that’s ever happened to unions — the case that could end the centuries-old restrictions on unions’ free speech rights.
How is that even possible?
The argument is basically this: American labor law has always fallen under Congress’ authority to regulate interstate commerce, which is why it’s become such a self-contradictory mess. By redefining all public sector union activity as “political speech,” Friedrichs would put labor law firmly under the First Amendment, where it should be anyway, and give us a powerful argument — indeed, Constitutional protection — for fighting employer restrictions on our activities.
First Amendment law developed in this country during the time period 1870-1920, when many of the precedents establishing so-called “political” speech (as opposed to “commercial” speech, e.g. advertising) arose from the legal fights of IWW activists and other workers demanding the right to organize and bargain collectively, the main rights unions have today.
Putting labor law back under the First Amendment instead of the Constitution’s interstate commerce clause means that city councils and boards of supervisors would no longer have the right to interfere with our activities because the First Amendment prohibits governmental restrictions on free speech. That turns the Friedrichs argument — that unions violate non-members’ free speech rights — on its head.
It means laws that restrict allowable subjects of collective bargaining (like in Wisconsin and other states) would be unconstitutional because they’re a governmental restriction on union members’ First Amendment right to freedom of speech. It means unions would no longer be required to represent non-members because governments may not “compel” speech any more than they can restrict it. It means that no-strike clauses in contracts could become unenforceable — because a strike is a form of political speech protected by the First Amendment: the right “peaceably to assemble, and to petition the Government for a redress of grievances.”
The post-Friedrichs challenge
“I humbly suggest that every union still certified demand to bargain the day after the decision,” writes Shaun Richman, author of the In These Times stories. “They could throw their old contracts on the table and sue every school board and state agency that refuses to discuss those items. I’d also suggest that they begin drawing up some new picket signs. … we had better be prepared to create the chaos that the Court is inviting.”
It remains to be seen who will take up that challenge. But it’s an intriguing thought nonetheless. And the anti-union corporations and politicians who rushed Friedrichs to the Supreme Court can take their comfort from Proverbs 16:18:
“Pride goeth before destruction, and a haughty spirit before a fall.”
In an interesting twist, the anti-union Friedrichs v. CTA case currently under consideration by the Supreme Court could actually lay the ground work for making public employee strikes in New York and elsewhere constitutionally protected free speech. …
Unsurprisingly, many states make strikes by public sector employees like the CUNY faculty and staff totally illegal, or else severely restrict them. Many states also make many union demands illegal, either by statute or by judicial decisions. The Friedrichs case, by inserting public employees’ 1st Amendment rights into collective bargaining could give unions a very useful tool for reversing many anti-union measures that are on the books. …
Public employees have actually enjoyed a degree of free speech protections at work for some time, making them the only workers in America who do. Remember, the 1st Amendment only prevents the government from restricting a citizen’s rights of free speech and assembly. Since public employees work for the government, their employer is constitutionally forbidden from restricting or coercing their political speech. …
If Justice Alito gets his way, then Scott Walker is suddenly massively violating the free speech rights of Wisconsin public employees. …
The hubris and general stupidity of Justice Alito — who tried and failed to get this ruling in last year’s Harris v. Quinn — and the vast right-wing conspiracy of union-busters who raced this case through the courts in less than a year perhaps shouldn’t be surprising. They just want to kill the unions, and they’re used to getting their way.
But, in their narrow-minded pursuit of denying unions in the public sector agency fee, they are mindlessly trying to just hand to us free speech rights that conservative jurists and politicians have studiously avoided granting to union efforts for over two centuries.
An adverse decision in Friedrichs would hand unions a first amendment argument to refuse to represent non-members. …
If the Supreme Court rules that every interaction that a union has with its government employer is inherently political … then that would open the door to unions claiming their own First Amendment right — to choose who they represent. In other words, if agency fee is compelled speech, then the duty of exclusive representation imposed on unions is also compelled speech. …
Friedrichs could be a useful tool for labor by finally connecting our work to our rights of free speech and free assembly.
“Pray for the dead and fight like hell for the living.” — Mother Jones
“The report of my death was an exaggeration.” — Mark Twain
For more than eight years, the 1021 NewsWire has been a positive and encouraging voice for members of SEIU 1021 and the labor movement in general. Its mission has always been to tell you what you need to know to be an active participant in this local.
But it’s also been frank and honest about the challenges we face, and occasionally even presented opposing viewpoints, not to advocate for them, but because it’s important to know what the other side thinks.
Admittedly, it’s been hard to find any glimmers of brightness in the recent news about Friedrichs v. California Teachers Association. The U.S. Supreme Court heard arguments in the case last week; few in the labor movement were optimistic before then, but almost no one is now. But labor still has lots of supporters, and we present their views when we find them (see below).
The outlook may appear bleak, but to paraphrase the misquotes of Mark Twain*, reports of the American labor movement’s death have been greatly exaggerated. Union life is about to get more challenging, but unions still exist in right-to-work-for-less states, and alternative, non-union labor movements (aka “alt-labor”) are cropping up everywhere, especially among low-wage workers. As we reported last week, Scott Walker’s union-hating regime has thinned the ranks of Wisconsin’s unions, but they continue to fight on, undeterred. Choosing not to fight is simply not an option.
Here’s our glimmer … of purple
When you hear encouraging talk about renewed calls for organizing to pump new life and energy into the labor movement, we would do well to remember that a focus on organizing was the main stated reason SEIU and four other international unions left the AFL-CIO in 2005.
SEIU’s direction — much criticized in 2005 — has proven to be prescient, and it was SEIU that led the way then and is leading it now through the Fight for $15, the fight for immigrant rights, for women’s rights, for voting rights, for retirement security, for climate justice, and much more.
Legislative and electoral battles are still important and we as a local and a union will continue to fight them, but there is no labor movement without people and no people in the labor movement without organizing. When the labor movement began in this country — or any other country, for that matter — there were no laws saying it was okay for workers to organize. But we did anyway.
Voting for our lives
On the contrary, the laws and the institutions that made them were all dead set against workers, just like they are today. Indeed, the early fights for free speech that established First Amendment jurisprudence in the late 1800s and early 1900s all came from workers demanding workers’ rights, women demanding women’s rights, and so on. Workers were routinely shot and killed on picket lines for demanding better pay and working conditions, for exercising their freedom of speech to say that.
Today the same First Amendment that protects “political speech” and our rights to demand better lives is being cynically — indeed, evilly — turned against us. You can thank the Supreme Court for that too: Last week marked the sixth anniversary of Citizens United, the case that decreed “money equals speech” and therefore whoever has the most money has the most freedom of speech. That’s worked out well (not!).
It was corporate big money, not a lack of free speech, that brought Friedrichs to the Supreme Court. It would be ironic (if it weren’t so pathetic and harmful) that those with the most money believe they shouldn’t have to pay for the benefits they receive while they’re happy to pour money into the candidates and issues that keep making them richer at the expense of those with little or nothing already. A few profit, millions pay for it, millions suffer for it.
Who doesn’t like a bargain, right? But the free riders who will no doubt weigh down this union and countless others after Friedrichs will be acting no less greedily and selfishly than the corporations who brought things this far. To them, we have only one word in response:
The Citizens United decision, which amplified the role of money in American politics, also promised something like a level playing field. Both corporations and unions, it said, could spend what they liked to support their favored candidates.
But last week’s arguments in a major challenge to public unions illuminated a gap in the Supreme Court’s treatment of capital and labor. The court has long allowed workers to refuse to finance unions’ political activities. But shareholders have no comparable right to refuse to pay for corporate political speech.
Back in the old days, unions could get crushed easily with police crackdowns and armed thugs. These days, business conducts its union busting the civilized way, in court and at the bank. The question before the Supreme Court earlier this week in Friedrichs v. California Teachers Association wasn’t about free speech or workers’ rights on the job so much as it was about the right of unions to exist as financial and legal institutions. …
The case fundamentally has little to do with free expression, and lots to do with fair payment for a vital service. And paradoxically, a single teacher’s reluctance to pay her fair share to the organization that negotiates her job contract is silencing the voice of all public-sector workers, as the court considers a policy that would defund their unions. …
The pro-labor side would agree with the conservatives that constitutional rights are at issue — not because unions threaten freedom expression, but because labor power is fundamental to democratic values.
Capital & Main: “Moshe Marvit’s Six ‘Friedrichs’ Takeaways”
* Twain’s actual quote is above. The “greatly exaggerated” variants are misquotes.
Morning Shift: “The end of fair share fees”
Hel-lo? … The business lobby and its ideological allies on the right have not pressed for right-to-work out of a passion for the First Amendment. They’ve sought to eliminate payments by nonmembers to labor unions — public sector unions in the case of Friedrichs — because they want to weaken unions. This is just about the worst-kept secret in America, but you wouldn’t have known that from hearing Roberts, Scalia, and DuMont Monday.
Capital & Main: “Could Friedrichs v. CTA Be Labor’s ‘Citizens United’?”
As usual, we turn to Capital & Main to explain the real issues and call out judicial activism by the same hypocritical right-wing corporate interests that decry “judicial activism” … when they believe someone else is doing it.
The case could go down as organized labor’s Citizens United — decimating membership, crippling the unions’ lobbying efficacy and effectively stifling the collective political voice of public-sector workers. …
In fact, Friedrichs has been literally tailored to [weaken teachers’ voice to advocate for students] and was fast-tracked through the California courts by the plaintiffs’ lawyers who asked judges to rule against them so that they could move the case up more quickly toward the Supreme Court.
“Clearly some justices believe that public-sector collective bargaining is bad,” University of California, Irvine law school professor Catherine Fisk told Capital & Main, “and so I think that Friedrichs was a case delivered by an activist litigation group to provide them the vehicle to hold that all public-sector collective bargaining has to be on a strictly right-to-work basis.”
The case that could cripple public-sector unions zoomed thought the courts specifically to climb into Alito’s lap and the lawyers for the Center for Individual Rights (CIR) are ready to dance. …
The strategy is “nefarious,” Frank Deale, a professor at the CUNY School of Law told American Prospect. “In fact, it’s collusive, in a way. You’re setting up this false scenario, this false conflict, in order to get a Supreme Court ruling. The Center for Individual Rights didn’t even make an argument [in the lower-court filings]. They asked for the court to rule for the defendant, and then they got rewarded for it.”
There is a case heading to the Supreme Court this term that threatens to muzzle workers and further entrench staggering levels of economic inequality in our country, tipping the scales even further in the direction of corporate CEOs and wealthy special interests. …
And that is what’s at stake in this case: Corporate CEOs know that the ability to come together and speak in one voice is workers’ best tool to advocate for economic justice and workplace fairness. After launching successful efforts to push extreme anti-union policies through state legislatures, big money conservatives are using the courts to come after workers’ right to join together.
NY Times Editorial: “At the Supreme Court, a Big Threat to Unions”
In a 2014 ruling, Justice Alito dismissed the free-rider concern and claimed that those who support a union will willingly pay its dues, but this is contradicted by both common sense and experience.
States should continue to be free to fashion their own arrangements for handling labor relations. More than 20 have fair-share fee systems which encompass thousands of negotiated contracts representing millions of teachers, police officers, firefighters and other public workers. All this could be upset by a ruling for the plaintiffs.
At the least, the court should be extremely wary, as it usually is, of upending long-settled precedent. The Abood ruling has stood, and been repeatedly reaffirmed, for nearly 40 years. It would be troubling if it was now reversed by a deeply divided vote.
Morning Shift: “Bonanza For Bradley?”
The conservative Bradley Foundation has spent millions over three decades to smash labor unions. Now an investment that could barely buy a house in Washington may bring it closer to that goal than ever before.
Bradley funds the Center for Individual Rights, the conservative D.C. nonprofit law firm that brought the Friedrichs case; it funds (or has funded) at least 11 organizations that submitted amicus briefs for the plaintiffs; and it’s funded a score of conservative organizations that support the lawsuit’s claim that fair-share fees are unconstitutional. When CIR first filed the case in a California federal court in 2013, the foundation posted the news on its website under the tab, “What We Do.”
Some of the most intelligent writing about Friedrichs has appeared in the progressive In These Times. This resource guide includes links to its major stories on the case and why Friedrichs does not have to be labor’s death knell, but could be the bell tolling its re-invigoration.
A phoenix may be rising in the struggle to remake a strong labor movement in the United States. After decades of hand wringing over the illnesses afflicting labor unions and hundreds of suggested prescriptions from movement sympathizers and strategists, a fundamental transformation may finally be upon us.
Morning Shift: “Friedrichs Goes To Court”
Unions like AFT and AFSCME have already responded as though the court will rule against them. “Public sector unions haven’t been sitting passively by as the judicial juggernaut approaches,” the Washington Post’s Lydia DePillis wrote in July. “Rather, they’ve embarked on an broad ‘internal organizing’ effort, reaching workers who may have been paying agency fees for years and never had any contact with a union representative.” Conservative groups point to this activity to argue that Friedrichs is not the death knell for unions that many assume.
The Guardian (UK): “Wisconsin’s public-sector unions plot fightback as supreme court case looms”
by Steven Greenhouse, former NY Times labor reporter
Wisconsin’s labor leaders cheered when their nemesis, Scott Walker, dropped out of the presidential campaign last September. … But while Walker’s political ambitions may have been thwarted, four years on Wisconsin’s public-sector unions remain humbled too.
With Walker’s hard-won 2011 law crippling their ability to bargain and diminishing their ranks, the state’s public-employee unions are struggling to figure out how to increase their strength, membership and collective voice. The plight of Wisconsin’s unions could point the way for public-employee unions nationwide if the supreme court, in a closely watched case to be heard on 11 January, prohibits any requirement that government workers pay any fees to the unions that represent them.
Morning Shift: “Wisconsin Case Study”
How are public employee unions doing in Wisconsin? Not great. Wisconsin’s AFSCME local … lost two-thirds of its members and funding after the enactment of Act 10, Steven Greenhouse reports in the Guardian. In many workplaces AFSCME isn’t bargaining at all because it’s too expensive and/or too onerous. …
AFSCME’s best-case scenario is that the union’s considerable setbacks in Wisconsin will prompt a renewal there of labor activism. “When we talk to potential union members, we explain, ‘Your working conditions aren’t going to get better unless we act as a unit, as a union,’” AFSCME’s Paul Spink told the Guardian. “We have to relearn the lessons of labor from the 1930s and 1940s — of collective action and collective message.” Wisconsin union members can take some heart from Walker’s high disapproval rating in the state: It was 60 percent in October.
Sacramento Bee: “California labor unions react to Supreme Court dues debate”
While the outcome of Friedrichs v. California Teachers Association could end compulsory payments to government unions, maintain the status quo or fall somewhere in between, the labor leaders interviewed by The Sacramento Bee remained optimistic regardless of the outcome that their associations would adapt.
“We’ll continue to exist,” said Dave Low, executive director of the California School Employees Association, “but it would weaken us.”
Sacramento Bee: “Dan Walters: Supreme Court could hit unions in wallets”
The decision won’t come down for months — too late for it to make a difference in union political activities this year. However, if the court rules as expected, it could make a big dent in the future political power of California’s public unions. …
But those representing low-paid workers — some of them earning no more than minimum wages — such as janitors, gardeners and home care aides, could take big hits. And it could make organizing child caregivers and other service workers much more difficult.
Read this week’s 3-part coverage of Friedrichs v. CTA:
Politico Morning Shift: “Union Files Friedrichs Brief”
The California Teachers Association filed its long-anticipated brief in the right-to-work Friedrichs case at the Supreme Court. The case gives the court an opportunity to overrule its 38-year-old Abood precedent, which held that non-member “fair share fees” charged by public employee unions were constitutional. In its brief Friday, CTA urged the court not to overrule Abood, saying “literally tens of thousands of contracts governing millions of public employees have been entered into in reliance on this Court’s precedent.”
“Abood correctly held that the state’s interests as employer outweigh any interference with employees’ First Amendment rights,” the brief said. “Abood fully accommodated non-members’ First Amendment interests by allowing non-members to opt out of contributing to unions’ political expenditures unrelated to collective bargaining. Agency-fee requirements impose no limits on employees’ right to speak against the union’s positions.”
Download CTA brief (PDF)
Politico Morning Shift: “Who’s Behind Friedrichs?”
The Center for Individual Rights, a conservative public-interest law firm, will be representing Rebecca Friedrichs, the plaintiff in the case. But who’s behind them? “The list of foundations and donor-advised funds supporting the Center for Individual Rights reads like a who’s who of the right’s organized opposition to labor,” Adele M. Stan writes for the American Prospect.
“A number of those funders, unsurprisingly, enjoy the support of Charles and David Koch, the billionaire brothers who are principals in Koch Industries, the second-largest privately held corporation in the United States. (Forbes estimates each of the brothers’ personal wealth at $42.3 billion.) Longtime supporters of anti-labor efforts, the Koch brothers even founded their own organization, Americans for Prosperity, to create for the Republican right the sort of electoral get-out-the-vote ground teams that members of unions often form on behalf of pro-labor, usually Democratic, candidates.”
The American Prospect: “Who’s Behind Friedrichs?”
The real force propelling Friedrichs’ gallop through the courts was the Center for Individual Rights (CIR), the right-wing pro-bono law group that is representing teacher Rebecca Friedrichs and her fellow plaintiffs: At each stage in the legal process, CIR attorneys asked the courts to rule against their own clients, with the apparent interest of moving the case up to the Supreme Court as quickly as possible.
“It just seems really nefarious,” says Frank Deale, a professor at the CUNY School of Law. “In fact, it’s collusive, in a way. You’re setting up this false scenario, this false conflict, in order to get a Supreme Court ruling. The Center for Individual Rights didn’t even make an argument [in the lower-court filings]. They asked for the court to rule for the defendant, and then they got rewarded for it.”
…the resources unions could devote to political action could be substantially diminished — a possible reason why, with the 2016 elections looming, right-wing organizations have been so determined to fast-forward the case to the Supremes. … Since its founding, the Center for Individual Rights has maintained a special focus on challenging civil-rights measures, especially affirmative action. …
If the Supreme Court doesn’t [use Friedrichs to] overturn its 1977 decision in Abood, it’s clear that the Koch brothers and their allies will run yet another suit through the courts in their decades-long effort to destroy unions.
The next U.S. president may get to appoint as many as three Supreme Court justices. The fate of labor may well rest with those choices.
Business Insider: “Labor unions aren’t just helpful — they might be ‘necessary'”
Through boom and bust, the American worker has been faced by two trends over the past few decades: the percentage of workers that are members of labor unions has decreased and the American middle class has slowly been hollowed out.
According to four researchers … the two trends are closely connected. “The evidence in this paper shows that parents’ unionism has a significant relationship with their offspring’s well-being” …
“A strong union movement is not simply sufficient for high levels of intergenerational mobility and middle-class membership, but it could be necessary,” wrote the researchers.