The Future of Friedrichs in the Supreme Court

DSC_0263BY RISA LIEBERWITZ

There’s been much speculation about the impact of the death of Supreme Court Justice Antonin Scalia on the cases currently before the Court, particularly those anticipated to be decided by a 5-4 vote with Scalia in the majority. One of these cases is Friedrichs v. California Teachers Association, in which the plaintiffs argued that the Supreme Court’s 40 year precedent upholding the constitutionality of agency fees – or fair share fees – should be overruled. The full Court heard oral arguments in the case last month. The AAUP had filed an amicus brief in Friedrichs, with the American Federation of Teachers, arguing that the Court should re-affirm that the payment of agency fees by nonmembers to support their fair share of the costs of collective bargaining is constitutional.

No one knows for sure what will happen next in the Supreme Court, but one likely possibility is that the remaining eight justices will decide the Friedrichs case, with the likely outcome of a 4-4 decision. A 4-4 split vote leaves the lower court decision intact – in this case, the federal appellate court decision that ruled against the constitutional challenge, based on the 1977 Supreme Court precedent of Abood v. Detroit Board of Education, which upheld the constitutionality of agency/fair share fees in the public sector workplace.

The continued vitality of Abood would be a positive development for protecting the rights of workers to effective union representation. Agency/fair share fees ensure that employees who are not union members, but who benefit from collective bargaining, pay their fair share of the costs. As Justice Elena Kagan explained in a 2014 case: “For some 40 years, Abood has struck a stable balance—consistent with this court’s general framework for assessing public employees’ First Amendment claims—between those employees’ rights and government entities’ interests in managing their workforces.” (Harris v. Quinn, dissent by Kagan, Ginsburg, Breyer, Sotomayor).

The balance struck in Abood is supported by principles of democracy and fairness – and common sense. Unions are democratically elected through a majority vote, which makes the union the exclusive collective bargaining representative for all the employees. The union has a corresponding legal duty to fairly represent the interests of all the employees. This means that union members and nonmembers alike receive the benefits the union gains in collective bargaining, including union representation in employee grievances, which may entail the costs of arbitration hearings. It’s only right that all employees pay their fair share of the union’s expenses to negotiate and enforce the collective bargaining agreement.

No matter what the outcome is in the Supreme Court– including a 4-4 decision in Friedrichs – there will likely be more attacks on unions, both in the courts and state legislatures. And we will continue to fight for labor rights in the courts and legislatures. But most important is continuing to expand the labor movement by organizing to build strong unions with high membership. The reasons for doing this remain the same: organizing is the key to making the goals of the labor movement a reality – social justice and fairness for all employees.

6 thoughts on “The Future of Friedrichs in the Supreme Court

  1. Risa notes: “The reasons for doing this remain the same: organizing is the key to making the goals of the labor movement a reality – social justice and fairness for all employees.” This is also true for tenured faculty who are are banned from collective bargaining. To date, there has been very little in the way of of a unified, national effort by tenured faculty to mount a defense against attacks on tenure and academic freedom.

    • I agree that organizing is essential to build a strong collective movement to defend tenure and expand tenure to cover all faculty to protect academic freedom, due process, and job security. There are multiple ways that faculty can organize in public and private universities. I think it’s best for faculty to consider all possible approaches along the spectrum of organizing, including: joining the AAUP and building strong AAUP advocacy chapters; strengthening shared governance bodies, such as Faculty Senates; and unionization. Even where faculty are not covered by collective bargaining laws, unionization is not prohibited, although the employer is not legally obligated to bargain with the union. In December, 2014, the NLRB’s Pacific Lutheran University decision refined the definition of “managerial” employees in ways that expand opportunities for private university faculty unionization (see, http://www.aaup.org/article/improving-legal-landscape-unionization-private-colleges-and-universities )

      • I totally agree, but what concerns me is that organization at the individual university level (Wisconsin, Connecticut, NYU) has not been enough to counter the erosion of shared governance and its replacement with a top down business model. I’m hoping that there is some way that we can nationalize our efforts in order to become more effective. We need a positive publicity campaign to convince the public that tenure is worth saving. At present there is very little popular support for tenure.

  2. As I understand it, if Friedrichs as decided in the 9th Circuit stands due to a tie in the Supreme Court stands, it stands only in that Circuit where decided and sets no precedent.

    • It’s correct that a 4-4 Supreme Court vote does not create a precedent and leaves the lower court decision standing within that jurisdiction. However, in the Friedrichs case, what is most important is that a 4-4 vote on the Supreme Court would leave in place the status quo of the Supreme Court’s precedent in Abood (1977), which upholds the constitutionality of agency/fair share fees.

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