Friedrichs may tarnish scales of justice

Ira Fader
General Counsel
MTA Today Winter 2016

In January, the U.S. Supreme Court heard arguments in a controversial case that has the real potential and ideological purpose of harming public-sector labor unions. The case is Friedrichs v. California Teachers Association, and it has gained national attention. It is also a watershed moment for the Supreme Court’s legacy, for the continued strength of public-sector unions, and even for the outcome of the 2016 national and state elections. Why is this case so important?

The MTA is made up of more than 110,000 public education employees, active and retired. We represent you because public employees in Massachusetts, as in California and many other states, have the right to join a union in order to bargain collectively with their government employer. By joining a union, employees also gain firepower to publicly advocate in political, legal and media forums for their economic and professional interests. When a majority of employees in a bargaining unit vote for a union, the union they choose becomes the “exclusive representative” of all employees. Unions increase wages, protect health insurance and other benefits, and enforce the rights of everyone in the unit.

Some employees do not wish to join a union or pay for the costs of the representation from which they directly benefit. Indeed, the First Amendment to the U.S. Constitution forbids the state from passing a law that would compel such membership. The problem is that the union still has a legal duty to deliver services to the non-members who pay no dues at all. Non-payers are thus commonly referred to as “free riders” because they get the benefits of collective bargaining but share in none of the costs.

In 1977, the Supreme Court balanced the interests of the employee majority who chose unionization and the constitutional rights of objectors. In Abood v. Detroit Board of Education, the court held that non-members can be charged a “fair share” or “agency” fee to pay for the bargaining-related costs that the union incurs on behalf of everyone. The court expressly rejected the argument that an agency fee arrangement — authorized by state law — intruded upon a non-member’s protected rights of association or speech. And it rejected the assertion that collective bargaining with a government employer is a political act that non-members cannot be compelled to subsidize.

Thus, Abood affirmed the right of a union to collect a fee from non-members for the costs of collective bargaining, though it required the union to remove the costs of non-bargaining political activity. The scales of justice were balanced: Non-members could be required to pay for the benefits of bargaining, but not for the union’s political activities. To have held otherwise would have compelled “free ridership” and forced union members to subsidize the cost of the services that the non-payers are legally entitled to receive.

Indeed, Justice Antonin Scalia later referred to non-paying non-members as “free riders whom the law requires the union to carry — indeed, requires the union to go out of its way to benefit, even at the expense of its other interests.”

Over the next 35 years, the Abood decision became deeply embedded in constitutional jurisprudence. As recently as six years ago, a unanimous Supreme Court upheld Abood’s “general First Amendment principle” permitting the imposition of a fair-share fee on non-members. It has been cited with unquestioning acceptance in hundreds of legal cases upholding fair-share agreements. It has been cited in cases involving bar association dues, university student activity fees, and other contexts. Tens of thousands of public-sector bargaining agreements contain agency fee provisions. Abood has been a bedrock principle of public-sector labor law for nearly four decades.

Now the Friedrichs plaintiffs seek to overturn Abood.

"In 1977, the Supreme Court balanced the interests of the employee majority who chose unionization and the constitutional rights of objectors.... The court expressly rejected the argument that an agency fee arrangement — authorized by state law — intruded upon a non-member’s protected rights of association or speech. "

MTA General Counsel Ira Fader

So what changed?

Several things changed. First, a right-wing public-interest law organization called the Center for Individual Rights emerged several years ago to battle affirmative action, voting rights, gay rights and public-sector unions. Its benefactors are a veritable Who’s Who of right-wing foundations and billionaires who perceive public-sector unions as an obstacle to conservative domination of the political system. Think Koch brothers.

Second, in 2006 Justice Samuel Alito was appointed to the top court. He was a controversial selection who was seen as a far-right nominee from the Republican Party’s reactionary wing. He survived a Democratic filibuster and was narrowly approved in the Senate. His views have hardened, and he has pulled the court sharply rightward.

Third, these developments came together in 2012 and 2014 when two public-sector labor cases came before the Supreme Court. Although the legitimacy of Abood was not raised in those cases, Justice Alito openly announced his antagonistic view of Abood’s reasoning. In those cases, Alito all but solicited the legal attack that the Center for Individual Rights was primed to bring. Cases ordinarily take years to arrive at the Supreme Court through the federal judicial system. Not Friedrichs, which sped through the lower courts without any evidentiary record to slow it down.

What did not change is the constitutional issue. The arguments now advanced in Friedrichs are the same as the arguments that were made in Abood. The court must answer once again the questions answered in Abood: whether an agency fee arrangement — authorized by state law — intrudes upon a nonmember’s protected rights of association or speech, as well as whether anything collectively bargained with the government is inherently within a political sphere so that non-members cannot be compelled to subsidize it.

The Supreme Court is supposed to be guided and governed by what is called stare decisis, a legal doctrine that counsels against overturning established legal precedent absent powerful reasons for doing so. Stare decisis provides stability and predictability in the law and minimizes judicial idiosyncrasy. Established constitutional pronouncements are not supposed to change with the composition of the court.

Many commentators in legal and media circles have suggested that Friedrichs is a companion to Citizens United, a politically charged decision that opened the floodgates for corporate cash into our national campaign and electoral system. Supporters of Citizens United like to note that union political contributions are the counterweight to corporate political contributions. Setting aside the obvious fact that union money is a fraction of the corporate money flushing through the system, Friedrichs threatens now to remove that political counterweight and with it a justification for Citizens United’s result.

Are there five judges on the Supreme Court ready to overturn a carefully rendered 39-year-old decision of their own respected predecessors? Will they be willing to overturn countless lower-court decisions that have relied on Abood? Will they abandon their federalist principles to overturn the power of states to determine their own collective bargaining laws? Are they prepared to issue a decision that is nakedly and unabashedly political, right in the middle of the 2016 presidential campaign? (Bear in mind that the next president may have the opportunity to make several Supreme Court appointments.)

Some members of the court may despise public-sector unions and the role they play in the political and economic life of this country. One can only hope that the court’s high regard for its own reputation and legacy will stop it not just from tipping the scales of justice but from tarnishing them beyond recognition. 

Ira Fader is the general counsel of the MTA.