Teachers and our unions in California, along with the rest of organized labor dodged a bullet (maybe a nuclear missile is a more appropriate metaphor) in yesterday's split decision in Friedrichs v. California Teachers Association. But I would caution against getting too happy about it or viewing the decision as a victory for organized labor on this issue.
For one thing, the ruling will not stop anti-union cases that are already in the pipeline or the filing of new cases that aren't in the courts yet. Because of the split decision, no new precedents have been set, so labor remains just as legally vulnerable as it was before. Also, labor's enemies have been racking up major victories at the state level. 26 states are now right to work, and it's not outside the realm of possibility that public sector unions could see their collective bargaining rights curtailed further in more states.
What now? "The plaintiffs in the case, led by the Center for Individual Rights, a conservative nonprofit, will file a motion for rehearing and pray that a Republican gets elected president in November."
(from Politico’s Morning Report)
Leaders of major public sector unions, meanwhile, say the case created a lasting resolve to organize and strategize together. SEIU's Mary Kay Henry, NEA's Lily Eskelsen Garcia, AFT's Randi Weingarten, and AFSCME's Lee Saunders all held a joint press call after Tuesday's decision, and "all four of us understand the importance of working together and combining our resources, working on a political agenda, legislative agenda," Saunders said. "We were doing that before Friedrichs but obviously Friedrichs pushed us to do more."
SEIU, AFSCME, NEA and AFT are among the unions that favor creating a new super PAC to drive union issues, and they say they've also embraced more aggressive attempts to turn agency fee payers into dues-paying members. That strategy faces conservative headwinds at the state level - the union movement is bleeding members in Wisconsin, for example, and 26 states now have right-to-work laws prohibiting unions from collecting compulsory fees from non-members for whom they've bargained collectively. Four states (Indiana, Michigan, Wisconsin, West Virginia) went right-to-work in the past four years, making this the fastest-moving decade for right-to-work since the 1950s.
The case originated with the Washington, D.C.-based Center for Individual Rights (CIR), a rightwing litigation shop that designed Friedrichs in response to an inference in Justice Samuel Alito’s majority opinion in Harris v. Quinn, a “dog whistle” ruling widely seen as inviting a First Amendment challenge to fair-share fees.
CIR had previously won notoriety for its court challenges to affirmative action and the Voting Rights Act. The attorney arguing for the plaintiffs today is Michael A. Carvin of the white-shoe law firm Jones Day, a libertarian firebrand best known for twice attempting to get the Affordable Care Act declared unconstitutional.
Arguing for the unions is David Frederick, an appellate expert from the Washington, D.C. firm Kellogg, Huber, Hansen, Todd, Evans & Figel. Separately arguing on the unions’ side is California solicitor general Ed Dumont and U.S. Solicitor General Donald Verrilli Jr.
Friedrichs is a case brought by a California teacher who objects to paying dues to the union that has bargained the contract that secures her pay and benefits. The union does not collect any money from her to support its political activities, but, by virtue of the court’s 1977 Abood decision, and hundreds of later decisions based on Abood, she is obliged to pay that portion of her dues that goes to bargaining and administering her contract. That obligation, the court ruled in Abood, is essential if public employees are to have an effective right to collective bargaining. If employees can benefit from union representation without funding the union, the court reasoned, the union could be weakened to the point that it couldn’t represent those employees adequately, if, indeed, at all.