Friedrichs case threatens to push down wages for workers beyond the public sector

The Supreme Court heard oral arguments yesterday in Friedrichs v. California Teachers Association, a case that could profoundly affect the economy and the ability of millions of workers to improve their wages and working conditions. Friedrichs challenges the right of a majority of workers, through their democratically elected union, to bargain a contract with their public employer that makes every employee covered by the contract pay her fair share of the costs of negotiating it, administering it, and enforcing it in the courts or in arbitration. By preventing “free riders,” fair share clauses help ensure the viability of the union and the collective bargaining relationship.

What the fair share requirements (also known as “agency shop” provisions) don’t do is equally important to understand. They don’t require anyone to join the union—the law has been clear for decades that no one can be forced to join a union. And fair share provisions don’t require anyone to contribute to union political activity or advocacy on issues unrelated to collective bargaining.

Nevertheless, anti-union groups and the complaining teachers claim that it is unconstitutional for a public employer such as a state or county to make unwilling employees pay their fair share of bargaining costs. They claim a First Amendment right to accept the higher wages and benefits that come with the union contract without having to pay anything to support the union that won that contract. Alarmingly, a majority of the Supreme Court justices appear to agree, even though it means overturning Supreme Court precedent that is less than 40 years old. That case, Abood v. Detroit Board of Education, held that the interests of the government in having a single, stable collective bargaining partner outweighed the right of dissenting employees not to associate with the union and help pay for bargaining and administering the employment contract:

“The governmental interests advanced by the agency-shop provision in the Michigan statute are much the same as those promoted by similar provisions in federal labor law. The confusion and conflict that could arise if rival teachers’ unions, holding quite different views as to the proper class hours, class sizes, holidays, tenure provisions, and grievance procedures, each sought to obtain the employer’s agreement, are no different in kind from the evils that the exclusivity rule in the Railway Labor Act was designed to avoid. See Madison School Dist. v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 178, 97 S.Ct. 421, 425, 50 L.Ed.2d 376 (Brennan, J., concurring in judgment). The desirability of labor peace is no less important in the public sector, nor is the risk of “free riders” any smaller.”

The free rider problem is especially acute because the law makes a single union the exclusive representative of all the employees in a bargaining unit and imposes a duty on the union to fully and fairly represent every employee in the unit, whether they are a union member or not.

Justice Kagan, dissenting in a recent case, Harris v. Quinn, cites Justice Scalia’s explanation for why it is not just fair, but necessary to compel every employee to contribute to the costs of collective bargaining:

“Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost. The ‘compelling state interest’ that justifies this constitutional rule is not simply elimination of the inequity arising from the fact that some union activity redounds to the benefit of ‘free-riding’ nonmembers; private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for. What is distinctive, however, about the ‘free riders’ [in unions] . . . is that . . . the law requires the union to carry [them]—indeed, requires the union to go out of its way to benefit [them], even at the expense of its other interests. . . . [T]he free ridership (if it were left to be that) would be not incidental but calculated, not imposed by circumstances but mandated by government decree.”

Non-lawyers tend to forget that First Amendment rights are not absolute. A compelling governmental interest can outweigh free speech or free association rights, and the government has a much freer hand when it acts as an employer than it does when it acts as the sovereign. Employees at the federal courts, for example, don’t have the rights the rest of us have to openly support political parties and candidates, let alone to fund raise for them. And as the Court held less than ten years ago in Garcetti v. Ceballos, “When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” By the same logic, when Rebecca Friedrichs, the lead plaintiff, says she has a free speech right not to have the teachers union lobby or bargain on her behalf, that is not the speech of a citizen for First Amendment purposes; it is the speech of an employee, which carries far less weight. Abood was properly decided, and a court that respects precedent and the principle of stare decisis must uphold it.

The Friedrichs case is just as important economically as it is legally. The forces that have promoted right-to-work laws (which ban agency shop agreements) and want to outlaw public employee fair share requirements have one principal target: the continued existence of unions. They know that unions can’t thrive if they aren’t adequately financed. Right to work laws that ban fair share agreements have succeeded in weakening unions and reducing the rate of unionization everywhere they have been enacted. Consider these facts:

  • The share of public-sector workers in a union is nearly three times higher in non-right-to-work states than in right-to-work states.
  • 80 percent of public sector union members are located in the 24 fair share states, which is evidence of the ability of agency fees to strengthen unions and collective bargaining.
  • In right-to-work states, 20.3 percent of public-employee union members are free riders.

Union membership declined by 7 percent, and free-riding more than doubled, after Michigan enacted a public-sector right-to-work law and prohibited school districts from collecting union dues by payroll deduction in 2012.If wage stagnation and a shrinking middle class are the biggest economic issues facing our nation, then a Supreme Court decision that will increase free ridership, weaken unions, and reduce the rate of unionization would be a disaster. Public employees are 15 percent of all employees. They are, on average, better educated than the average private sector employee and are overwhelmingly in the middle class. In fair share states, public employees earn compensation nearly equal to their private sector counterparts, but where agency shop agreements have been banned, they earn 9 percent less.

If the anti-union forces win the Friedrichs case and government unions can no longer bargain for fair share agreements, wages will fall in the public sector, and eventually in the private sector as well, since employers in both sectors compete for the same workers and wage demands will decrease. Money is the lifeblood of most social institutions in American society, including labor organizations, and unions need a steady flow of revenue to support staff and provide representation services. As unions find it harder and harder to finance their activities and lose the ability to organize new members or retain their current members, they will face fights to repeal collective bargaining altogether, as has occurred already in Wisconsin. The compensation penalty for public employees in states that ban collective bargaining is an even more onerous 15 percent. Friedrichs could be the driver in a race to the bottom that most Americans will live to regret.