Union membership has been dying in American workplaces for decades. In 2014, only 6.6% of private-sector employees belonged to a union, according to the Bureau of Labor Statistics, a decline of almost 5% from just 2 years earlier. The same can’t be said for federal unions, which have seen their ranks grow by leaps and bounds. Between 2002 and 2012, almost 10,000 federal employees joined a union every year. At last count, 35.7% of public-sector workers belong to unions.
Representing everyone from teachers to fire department employees, those bargaining collectives are about to be dealt a huge blow by the US Supreme Court. A constitutional challenge to how labor unions pay for their activities is threatening to cripple public-sector representation in the coming weeks.
What Is Friedrichs v. California Teachers Association? 
The case, Friedrichs v. California Teachers Association, was filed by 10 teachers in California, along with Christian Educators Association International, an organization dedicated to supporting public school teachers who want to educate students from a “biblical worldview.”
The teachers want the Court to overturn an earlier decision, handed down in 1977’s Abood v. Detroit Board of Education, that said it was okay for states to require public-sector employees, even ones that aren’t members of a union, to pay “agency” fees.
The Court’s logic in Abood was fairly simple: unions negotiate wages, and since they’re legally obligated to represent both union and non-union workers, even non-unionized employees benefit from those negotiations. Thus non-union workers can still be expected to subsidize the expenses of those negotiations, even if they aren’t themselves members of the trade union.
While the decision in Abood paved the way, states still had to put the opinion’s implications into practice. About half of all states have, passing laws that allow unions to levy “agency shop” fees from non-union members who benefit from union activities. California is one of them, but the teachers in Friedrichs say the practice is unconstitutional.
“Agency Fees” Violate Our First Amendment Rights, California Teachers Say
The teachers’ argument rests on a presumption that all of a federal union’s activities, whether or not its actively lobbying legislators, are inherently political. If that’s true, non-union workers are being forced to subsidize “political speech,” speech they may very well disagree with. That would infringe on a teacher’s First Amendment rights
According to the Center for Individual Rights, an organization bank-rolling the teachers’ case:
“California law allows teachers to opt-out of the thirty percent or so of their dues devoted to overt political lobbying,” but they can’t “opt out of the sixty to seventy percent of their dues the union determines is devoted to collective bargaining. Requiring teachers to pay these ‘agency fees’ assumes that collective bargaining is non-political. But bargaining with local governments is inherently political.
Whether the union is negotiating for specific class sizes or pressing a local government to spend tax dollars on teacher pensions rather than on building parks, the union’s negotiating positions embody political choices that are often controversial.”
Mandatory “agency fees” force them to support political positions that they don’t support, the teachers argue, which would be a clear violation of their free speech rights.
Teachers Union Bites Back
Losing the right to charge non-union workers “agency fees” would create a class of “free-riders,” the California Teachers Association defending against the challenge argues. These employees would benefit from contracts negotiated by the labor union, but wouldn’t have to cough anything up to get that benefit. It’s a loss of revenue unions just can’t afford, at least not if they’re expected to have a true effect on the labor situation.
Unions have also argued that they are inherently democratic institutions, promoting the views of a majority of their members. If you don’t like those views, the unions suggest, join up and argue for your opinion.
The idea that all union activities are “inherently political” has rankled many union supporters. Members can opt out of the fees that go toward supporting a union’s political lobbying efforts. That “opt-out” process was designed to make a clear distinction between political and non-political activities.
In Abood, the Supreme Court actually acknowledged that an “agency fee” system could “impact” the First Amendment rights of non-union workers. But that impact was “constitutionally justified,” in exchange for the “important contribution of the union shop to the system of labor relations established by Congress,” then-Justice Potter Stewart wrote in the Court’s opinion.
How Will The Court Decide?
It’s all but a foregone conclusion that the Supreme Court will rule in favor of the teachers, overturning Abood and weakening public-sector trade unions further.
Oral arguments began on Monday, January 11, 2015, and the conservative-majority Court seemed poised to rule that all federal union activity is “inherently political.” That’s especially true, said Justice Antonin Scalia, when the government is the entity you’re negotiating with. “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” he was quoted as saying in the New York Times.
The Court’s liberal members, on the other hand, seemed back on their heels, opting for largely non-constitutional arguments in the teacher union’s defense.
Justice Stephen Breyer questioned the intelligence of overruling a court decision that’s held for almost 40 years, saying: “You start overruling things [and] what happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot?” Justice Elena Kagan took the practical route, arguing that any decision affecting literally millions of employees was just too broad brushstroke.
The media, for its part, has been shockingly unanimous in its prognostications. Even liberal bastions like the Huffington Post can’t say a good word about the labor union’s chances in this fight.
Who Will The Decision Affect?
If, as is widely believed, the Supreme Court overturns Abood, public-sector workers in 21 states and the District of Columbia will probably be affected. That’s “probably,” not “definitely,” because no one knows how broad the Court’s decision will be. There’s a chance, although it’s unlikely, that the decision could only apply to the California Teachers Association against whom the case was filed.
More likely is that the decision will come to affect public trade unions in every “agency fee” state. In these states, including California, New York and Pennsylvania, legislators have instituted systems under which a majority of employees within a given “bargaining unit” (like a school system) can elect one union as their “exclusive bargaining agent.” That bargaining agent then represents all of the workers in the bargaining unit, regardless of whether or not they join the union.
How Will It Affect Unions?
Within the case itself, the effects of Friedrich aren’t being considered much at all. In the Atlantic, Garret Epps wrote: “search the joint appendix in this case – nearly 700 pages of pleadings, docket entries, and opinions – and you won’t encounter even one piece of live testimony from union leaders or state officials. The record contains no testimony or studies by labor economists.”
We can look at precedents, however, to get a taste of what Friedrichs may do to the labor situation for public-union workers in “agency fee” states. Michigan switched to a “right to work” system in 2012. “Right to work” is the major alternative to an “agency fee” set-up. In “right to work” states, workers can’t be compelled to pay any fees, whether or not they’re part of a bargaining unit covered by an exclusive bargaining agent. They also can’t get fired for refusing to kick in union dues.
So what happened when Michigan made the switch? The National Education Association, one of the country’s largest teachers’ unions, saw its membership take a nose-dive. Between 2012 and 2015, the union lost around 20,000 members and approximately $5 million in union dues.
The lesson from Michigan is that when you make people pay a little, they’re more likely to join up, even if they oppose unionization in principle. If you take away that mandatory fee, you’re going to lose a lot of members and a lot of money. Union leaders fear that could start a “death spiral,” as unions are forced to increase dues and more members leave because of the fee hikes.
It’s also illuminating to note that education is generally inferior in “right to work” states. Students in Virginia, North Carolina and other states with “right to work” laws on the books average lower test scores in both reading and math than students in “agency fee” states.
Unions Take One Step Further From Corporations
In the New York Times, Adam Liptak described a counter-intuitive legal landscape in which corporate entities, rather than individuals, are engaged in battle over representation. Citizens United, the Supreme Court decision that allowed corporations the right to donate unlimited amounts of money to “political action committees” (the much-derided PACs and Super PACs), applied equally to private companies and unions.
Workers, however, have always been able to opt out of supporting a union’s political activities, through a refund. Shareholders can’t oppose the political activities of their own companies in the same way, leading some critics to say the Supreme Court is treating private corporations differently from unions, and worse, restricting shareholders’ First Amendment rights to free speech.
Thus far, the Supreme Court hasn’t bought that argument. Paraphrasing the work of Justice Kennedy, Liptak writes that it’s “hard to change jobs and easy to sell shares.” In other words, you have to work, but you don’t have to own part of a company. To Kennedy, that means unions and businesses can be treated differently.