The Road to Friedrichs

A case before the Supreme Court threatens to devastate public-sector unions. How did it come to this?

Today, the Supreme Court will hear oral arguments in Friedrichs v. California Teachers Association, the most important labor-related case to come before the court in decades.

In 2013, the right-wing Center for Individual Rights filed suit in a California federal court on behalf of ten teachers led by Rebecca Friedrichs, a kindergarten teacher, and the Christian Educators Association International.

The plaintiffs claim that the sum they pay to CTA to represent them at the bargaining table (an “agency fee”) violates their First Amendment rights to free speech and free association. They argue that collective bargaining in the public sector is inherently political, and that procedures to opt out of contributing financially to the union’s political activities are overly burdensome.

Therefore, in their view, public employees should not be required to give money to a union whose political actions they disagree with. For these reasons, they claim, agency shops should be abolished in the public sector and replaced with a “right-to-work” regime for public workers in all fifty states.

With unionism in the private sector all but eradicated, the case represents a monumental threat to what’s left of organized labor in the US. If the court decides to ban agency shops in the public sector, unions will experience an immediate and substantial financial hit that will hamstring their ability to carry out even the most routine activities. This would likely kick off a vicious cycle of decline leading to even further membership losses and organizational disarray.

After decades of relative stability in the public sector, unions are looking at a potentially decisive defeat that would shatter labor’s institutional foundations and throw the movement’s future into serious question.

Five Terrible Years

The labor movement has taken a beating since 2010, when Republicans swept Democrats out of office in a historic wave election at the state level. The GOP won the governor’s mansion in labor strongholds like Ohio, Michigan, Pennsylvania, and Wisconsin, and gained control of both chambers in twenty-six state legislatures. With the economy in the tank, public-sector unions were an easy target. And anti-union politicians from both parties wasted little time in going after them.

Wisconsin governor Scott Walker pushed through the infamous Act 10 in early 2011, which severely restricted the scope of legal union activity and decimated public-sector unions’ membership rolls. Since the law was passed, AFSCME’s Wisconsin membership has plummeted by over forty thousand, leading to millions of dollars in lost revenues, mass staff layoffs, and the merger of three district councils. Not content with crushing public-sector unions, Walker and the Republican state legislature passed a statewide right-to-work law in 2015 that will further reduce the movement’s membership and power in Wisconsin.

Indiana became a right-to-work state in 2012, and in a truly stunning development, Michigan followed its lead after the unions lost a referendum to enshrine collective bargaining rights in the state constitution. By 2014, union density in Michigan had declined from 16.3 percent to 14.5 percent. But the law will bite even harder once contracts that were signed before it took effect expire.

In Kentucky, one of the few Southern states with a significant labor tradition, right-wing officials began passing right-to-work ordinances at the county level, opening up a front that had never been tested before. With the recent election of Republican governor Matt Bevin, a libertarian acolyte of the odious Ayn Rand, anti-union forces in the state will mount a new effort this year to pass a right-to-work law. The same is true across the state line, where West Virginia lawmakers are preparing a “workplace freedom” bill that would bring right-to-work to another one of labor’s historic strongholds.

After hedge fund billionaire Bruce Rauner bought the governor’s mansion in Illinois, he too began to experiment with local right-to-work zones and moved to cut off the flow of revenues to the state employees’ union. The story is much the same in a number of other states around the country, where anti-union officials are on the offensive while labor and its allies struggle mightily to hold the line.

As if the state-level political assault was not enough, labor’s enemies have pursued an extremely aggressive legal strategy in the courts. With conservatives holding the balance of power on the Supreme Court, they have filed a series of lawsuits that seek to overthrow the institutional underpinnings of public-sector unionism.

In a 2012 case called Knox v. SEIU Local 1000, the court ruled that a public-sector union cannot impose a special assessment for political activity without receiving affirmative consent from the members. On the surface this was a rather technical and arcane ruling. But the majority opinion, written by Justice Samuel Alito, opened the door to a full-fledged attack on the agency shop.

In the 1977 case Abood v. Detroit Board of Education, the court recognized the constitutionality of such arrangements in the public sector. Alito’s opinion in the Knox case attacked that ruling on First Amendment grounds, arguing that the “justification for permitting a union to collect fees from nonmembers — to prevent them from free-riding on the union’s efforts — is an anomaly.” By tucking this argument into the narrower ruling on political assessments, Alito signaled to every right-wing legal outfit in the country that it was open season on Abood.

The next major agency shop case, Harris v. Quinn, came before the court in 2014. In a 5-4 ruling, Alito again rendered the majority opinion. Joined by Justices Roberts, Thomas, Scalia, and Kennedy, he argued that home health care workers in Illinois are “quasi-public employees” and therefore not covered by Abood.

The ruling immediately prohibited the collection of agency fee payments from these employees, leading 13,000 of them to drop their SEIU membership. Even though Alito failed to assemble a majority to fully abolish the agency shop, he once again used his majority opinion to take shots at the Abood precedent and let the world know that he was itching to get a new agency shop case before the court.

Friedrichs is that case. It sped through the lower courts, where the plaintiffs took the unusual step of asking judges to rule against them in order to get to the Supreme Court faster. The court decided to hear the case last summer, and it will issue a ruling before the current term ends in June.

Unions are holding out hope that the principle of stare decisis will prevent the court from upending the entire structure of public-sector labor relations, and that Justice Scalia will maintain his historic concern with the free-rider problem. However, even if the court did not fully reverse Abood and impose a national right-to-work regime on the public sector, it is likely it would still rule in a way that would hamstring union activity.

The Spirit of Organization

When Congress passed the National Labor Relations Act in 1935, it specifically excluded public employees from its protections. This exclusion divided private-sector workers from their counterparts in the public sector, who became subject to a patchwork system of state and local laws that varied widely on a regional basis.

Many states passed laws banning strikes in the public sector, and through the 1950s very few state and local governments granted public employees the legal right to form unions and engage in collective bargaining. Workplace militancy and strike activity was rare, and wages and working conditions paled in comparison to those found in the highly unionized private sector.

That changed in the 1960s and 1970s, when public workers across the country joined unions and launched strikes in unprecedented numbers. White- and blue-collar workers alike caught the spirit of organization, revitalizing unions where they existed and creating ones where they didn’t.

As Joe Burns notes in his excellent book Strike Back, “From 1958 through 1970, the number of strikes of public workers ‘rose from 15 to 412 per year, workers involved from 1,720 to 333,500, and man-days of idleness as a result of strikes from 7,510 to 2,023,200.’”

Teachers were at the forefront of the upsurge, and were involved in many of the pivotal struggles of the period. Teacher strike activity spiked, and the main teachers unions experienced dramatic membership gains.

According to historian Marjorie Murphy, there were more than 300 teachers strikes during the 1960s — including at least 105 in 1967 alone. Between 1960 and 1970, membership in the American Federation of Teachers exploded from 60,000 to 200,000. Other public-sector unions like AFSCME saw massive membership gains as well, establishing themselves as rising powers in the labor movement and society at large.

Against this background of unprecedented militancy, a number of state and local governments passed new laws recognizing public employees’ right to organize, bargain, and strike. Also, beginning in the late 1960s, government employers began to recognize agency shops and other forms of union security as a permissible subject of bargaining.

Until this period, union membership in the public sector was largely voluntary. Workers could not be legally compelled to join a union, nor could they be required to make financial contributions to any labor organization that bargained on their behalf. Individual workers could join the union at any time, and they could drop their membership at any time.

This resulted in a good deal of financial and organizational insecurity for the unions, which could not count on a steady stream of dues income into the indefinite future. On the other hand, the voluntary nature of public-sector unionism often compelled unions to wage mass struggles against employers in order to attract members and maintain their loyalty.

As union leaders sought to consolidate their organizational gains and employers sought to avert strikes, the agency shop became increasingly attractive to both sides. Union security was the precondition for “responsible unionism,” which promoted stability in labor relations and channeled rank-and-file militancy into bureaucratic mechanisms like the grievance procedure and routinized collective bargaining. Because of the novelty of these arrangements in the public sector, they operated under a cloud of legal uncertainty.

In Detroit, a teacher named D. Louis Abood filed suit against the school board after it negotiated an agency shop clause with the Detroit Federation of Teachers in 1969. After the case made its way through the lower courts, the Supreme Court ruled in 1977.

The majority opinion affirmed the constitutionality of the agency shop, describing it as a reasonable compromise among the various First Amendment rights of unions, members, and non-members. It also argued that the agency shop furthered the cause of labor peace by guaranteeing the unions’ organizational security, thereby enhancing their ability to discipline members and prevent labor unrest.

The Cost of Security

The Abood ruling marked a turning point in the history of public-sector labor. In the words of AFSCME president Jerry Wurf, this period signaled an end to the movement’s “experimental and voluntary” phase and consolidated the massive membership increases that the unions witnessed during the 1960s and 1970s. The agency shop particularly benefited unions at the local government level, where overall union density exceeded 40 percent by the early 1980s. In some states public-sector union density reached Scandinavian heights, with New York leading the way at around 70 percent.

This new level of institutional security, as well as the guaranteed revenue streams that came with it, also created an organizational revolution within the unions. In states where it existed, the agency shop dramatically altered the relationship between the rank-and-file and the union leadership, who could now substitute external guarantees of support for the voluntary loyalty of their own members.

Public-sector unions increasingly disavowed strikes and workplace organizing in favor of less adversarial approaches like electoral politics and lobbying. In his book Success While Others Fail, former union staffer Paul Johnston describes how this process played out in a San Francisco SEIU local in the early 1980s:

Recalcitrant staff were purged, an agency shop provision was adopted with the support of the union’s new ally in the mayor’s office, and after continued internal turmoil, Local 400 was merged into Local 390, centered in Alameda County across the San Francisco Bay . . . the new alliance with management strengthened the union bureaucracy by aligning it with the centers of political power in the city while diminishing the participation of its members.

While unions in the private sector wilted under an intense employer offensive, public-sector unions fared pretty well (at least in institutional terms) from the 1980s through 2010. Membership held more or less constant, and their influence grew within the Democratic Party organizational apparatus, especially at the state and local levels.

In the long run, however, security came at a high price. Agency shops allowed many unions to safely ignore the internal weaknesses that result from a lack of membership participation and union democracy. For every Chicago Teachers Union, there are scores of local unions that can’t chart a workplace, run an effective contract campaign, or regularly make quorum at their membership meetings. Arrangements like the agency shop made public-sector labor strong on paper, but vulnerable to attack if the political winds shifted.

Those winds have shifted, and they’re blowing hard. If unions are going to have a future in this country, they must become member-driven organizations that can sustain themselves without state support. If the Friedrichs case turns out as many expect, they won’t have any other choice.