BY 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.