Outten & Golden: Empowering Employees in the Workplace

Post-Euphoria: SCOTUS Gears Up To Destroy Unions

July 7th, 2015 | Jonathan Tasini

jonathan-tasiniI’ve kind of laughed at the analysis percolating around that, oh, surprise, the Supreme Court is a liberal bastion…or not so conservative. Well, it was a great day when marriage equality became the law of the land. But, while everyone can now marry, the Supreme Court has a very clear five-vote conservative bloc when it comes to empowering business, enhancing class warfare and making it impossible to make a decent living…married or not.

And it is now gearing up to potentially destroy public sector unions.

The Court has now accepted for argument Friedrichs v. California Teachers Association. Essentially, the case is another one ginned up by right-wing, anti-union forces to eviscerate public sector unions by challenging the right of unions to collect dues and use them for the whole range of activities unions perform, particularly political lobbying.

The Court’s conservatives have been pining away for a case to destroy public sector unions. In June 2012, The Court essentially invited a huge challenge, in a ruling in Knox v. Service Employees International Union. As the incomparable Linda Greenhouse wrote:

But Justice Samuel A. Alito Jr., writing for a five-member majority that included Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas, went beyond the confines of the case to suggest strongly that the decades-old accommodation between union members and non-members in public workplaces violates the First Amendment rights of the non-members.To avoid the problem of “free riders,” agency-shop provisions require that those who object to joining the union nonetheless pay a fee that represents the portion of union dues that goes to the collective bargaining activities from which all employees benefit. The non-members, at their request, are entitled to be excused from contributing to the union’s political activities. Since the non-members must affirmatively exercise this “opt-out” option, this system tends to favor the union; as students of default rules well understand, inertia inevitably keeps some people from bothering to assert their rights.

The opt-out system “represents a remarkable boon for unions,” Justice Alito wrote in his majority opinion characterizing the arrangement as one the court had endorsed haphazardly and without adequate thought. He went on to challenge the basic agency-shop structure, calling it “an anomaly.” Compelling nonmembers to pay any portion of their dues to a union with which they don’t care to be associated is a substantial impingement on the First Amendment right to be free from compelled speech and association, Justice Alito said, adding: “Our cases to date have tolerated this impingement and we do not revisit today whether the court’s former cases have given adequate recognition to the critical First Amendment rights at stake.”

In case he hadn’t made it sufficiently clear that 60 years of Supreme Court precedents are now hanging by a thread, Justice Alito continued: “Our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.” As for the special dues assessment at issue in the case, he concluded, the opt-out system was constitutionally insufficient, and the objecting employees were free of any obligation unless they chose to opt in.[emphasis added]

Then, came Harris v. Quinn–and an almost fatal blow to public unions. It was bad:

The petitioners in Harris were several home-care workers who did not want to join a union, though a majority of their co-workers had voted in favor of joining one. Under Illinois law, they were still required to contribute their “fair share” to the costs of representation — a provision, known as an “agency fee,” that is prohibited in “right to work” states.The ability of unions to collect an agency fee reflects a constitutional balance that has governed American labor for some 40 years: Workers can’t be forced to join a union or contribute to its political and ideological activities, but they can be required to pay for the cost of the union’s collective bargaining and contract-administration activities.

The majority in Harris saw things differently. Making workers pay anything to a union they oppose is in tension with their First Amendment rights — “something of an anomaly,” in the words of the majority. But the real anomaly lies in according dissenters a right to refuse to pay for the union’s services — services that cost money to deliver, and that put money in the pockets of all employees.

And:

While a majority declined to strike down agency-fee arrangements for “full-fledged” public employees, as the petitioners had requested, and as unions had feared, the majority makes clear that such fees now rest on shaky constitutional ground, at least in the public sector, and are vulnerable to broader attack in the future.

What the Court did not do was strike down a 1977 case, Abood v. Detroit Board of Education, which really is the basis for the framework for public sector unions being able to charge fees to pay for the costs of operations–particularly, the costs that go into collective bargaining. The only reason the conservatives did not destroy Abood in the Harris decision was because Justice Alito said that home healthcare workers were not actually “full-fledged” public employees, so putting a stake into Abood was not necessary.

That, however, is what the Court will attempt to do with this new case, which will be heard in the coming term, and likely be decided in 2016. The issue is clear:

Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

I am not optimistic.

This blog was originally posted on Working Life on June 30, 2015. Reprinted with permission.

About the Author: The author’s name is Jonathan Tasini. Some basics: I’m a political/organizing/economic strategist. President of the Economic Future Group, a consultancy that has worked in a couple of dozen countries on five continents over the past 20 years; my goal is to find the “white spaces” that need filling, the places to make connections and create projects to enhance the great work many people do to advance a better world. I’m also publisher/editor of Working Life. I’ve done the traditional press routine including The Wall Street Journal, CNBC, Business Week, Playboy Magazine, The Washington Post, The New York Times and The Los Angeles Times. One day, back when blogs were just starting out more than a decade ago, I created Working Life. I used to write every day but sometimes there just isn’t something new to say so I cut back to weekdays (slacker), with an occasional weekend post when it moves me. I’ve also written four books: It’s Not Raining, We’re Being Peed On: The Scam of the Deficit Crisis (2010 and, then, the updated 2nd edition in 2013); The Audacity of Greed: Free Markets, Corporate Thieves and The Looting of America (2009); They Get Cake, We Eat Crumbs: The Real Story Behind Today’s Unfair Economy, an average reader’s guide to the economy (1997); and The Edifice Complex: Rebuilding the American Labor Movement to Face the Global Economy, a critique and prescriptive analysis of the labor movement (1995). I’m currently working on two news books.

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