Friedrichs and labor’s response

The First Amend­ment is at the heart of the Friedrichs case. It is a right-wing argu­ment that pub­lic sec­tor employ­ers (in oth­er words, the gov­ern­ment) vio­late indi­vid­u­als’ First amend­ment rights by com­pelling employ­ees, through con­tracts nego­ti­at­ed with unions, to pay a fee to a union. Cur­rent­ly, unions that are cer­ti­fied to rep­re­sent a group of employ­ees in a bar­gain­ing unit are legal­ly com­pelled to rep­re­sent all of the employ­ees in that unit. That means not just bar­gain­ing on their behalf, but expend­ing sig­nif­i­cant resources on griev­ances, meet­ings, com­mu­ni­ca­tions and every­thing else that goes into run­ning a union.

But union mem­ber­ship, includ­ing the pay­ment of dues, is com­plete­ly vol­un­tary. That’s why unions nego­ti­ate agency fees into con­tracts. These fees are cal­cu­lat­ed through com­pli­cat­ed for­mu­las to only rep­re­sent the true cost of bar­gain­ing rep­re­sen­ta­tion. Agency fees do not pay for things like polit­i­cal activ­i­ty (unions usu­al­ly have sep­a­rate vol­un­tary polit­i­cal funds).

But the Friedrichs case argues that any inter­ac­tion that a union has with the gov­ern­ment, includ­ing bar­gain­ing, is inher­ent­ly polit­i­cal. Agency fees, there­fore, are com­pelled polit­i­cal activity.

This ridicu­lous argu­ment is only before the Supreme Court now because Jus­tice Samuel Ali­to insert­ed the issue into last year’s oth­er­wise unre­lat­ed Har­ris Vs. Quinn case. That case was only a par­tial defeat for unions, as Ali­to lacked the fifth vote to total­ly do away with agency fee in the pub­lic sec­tor. In his writ­ten deci­sion, Ali­to basi­cal­ly solicit­ed for some­one to bring a case with exact­ly Friedrichs’ set of facts, and it has raced up to the Supreme Court. This is the stuff of a vast right-wing conspiracy.

Unions have mount­ed an excel­lent legal case, backed up by a broad array of sup­port­ing briefs. A rul­ing against the unions would reverse a 37-year-old prece­dent. The Supreme Court is sup­posed to be guid­ed by the prin­ci­pal of stare deci­sis, which is essen­tial­ly to let long-set­tled prece­dent stand. And final­ly, the case will be decid­ed in the mid­dle of a pres­i­den­tial elec­tion that is already turn­ing on ques­tions of inequal­i­ty and work­ers rights. In his han­dling of the Oba­macare and gay mar­riage cas­es, Chief Jus­tice Roberts has shown that he does seem to care about his lega­cy. Would he sup­port such a naked­ly par­ti­san polit­i­cal move by his Court in this elec­tion cycle?

So, on the facts, on the law and on the pol­i­tics, unions real­ly ought to win this case. And, to be clear, agency fee and exclu­sive rep­re­sen­ta­tion are worth defend­ing. They cre­ate the con­di­tions for tremen­dous work­er pow­er at work­places that have both.

But if unions lose agency fee, then exclu­sive rep­re­sen­ta­tion no longer makes sense. This is not sim­ply because of the free-rid­er prob­lem that will drain union resources. It is because exclu­sive rep­re­sen­ta­tion is essen­tial to labor peace, and a Friedrichs rul­ing that guts union rights is the clear­est sig­nal that the bil­lion­aire class does not want — nor does it deserve — any kind of peace.

Labor’s First Amend­ment rights

If the Supreme Court rules that every inter­ac­tion that a union has with its gov­ern­ment employ­er is inher­ent­ly polit­i­cal, Heather Whit­ney argues in her arti­cle, then that would open the door to unions claim­ing their own First Amend­ment right — to choose who they rep­re­sent. In oth­er words, if agency fee is com­pelled speech, then the duty of exclu­sive rep­re­sen­ta­tion imposed on unions is also com­pelled speech.

Imag­ine a group of reg­is­tered nurs­es at a pub­lic hos­pi­tal who want to bar­gain for much larg­er rais­es than the rest of the mem­bers of the bar­gain­ing unit. Or imag­ine a group of young work­ers who want to bar­gain away pen­sions in exchange for larg­er salaries in the here and now. (For­get for the moment that both sce­nar­ios are just bad union­ism.) Once these con­tract demands are con­sid­ered by the Court to be polit­i­cal speech, then the fact that these work­ers are com­pelled by the gov­ern­ment to rep­re­sent work­ers who dis­agree with them, and who could out­vote them, is a vio­la­tion of their First Amend­ment rights!

I’ll also point out that unions’ rights to freely engage in actu­al polit­i­cal speech is already imped­ed by the duties of exclu­sive rep­re­sen­ta­tion. Unions are polit­i­cal­ly cau­tious and loathe to wade into non-eco­nom­ic con­tro­ver­sies for fear of alien­at­ing a seg­ment of their bar­gain­ing unit. For instance, most unions were slow to oppose the wars in Afghanistan and Iraq for fear of alien­at­ing bar­gain­ing unit mem­bers who were vet­er­ans or who had chil­dren in the mil­i­tary. Even in a so-called ​“Right to Work” state, those peo­ple may not be mem­bers but they could still express their dis­plea­sure by vot­ing to decer­ti­fy the union. Does that not coerce unions into more lim­it­ed polit­i­cal activity?

This is not an abstrac­tion. The day after the Friedrichs deci­sion, if the Court kills agency fee by mak­ing all pub­lic sec­tor union work ​“polit­i­cal,” does any­body doubt that the first time a non-mem­ber walks into a union office with a griev­ance that she will be told, ​“Join the union or get the hell out of our office?” And then we’ll be off to the races with a case that will go to the Supreme Court to revis­it exclu­sive rep­re­sen­ta­tion in the pub­lic sec­tor with­out agency fee.

Then, the only ques­tion would be whether the gov­ern­ment has a ​“com­pelling inter­est in requir­ing unions to nego­ti­ate and grieve their non­mem­bers’ com­plaints with­out receiv­ing just com­pen­sa­tion.” And here schol­ar­ship would demon­strate that it has been the employ­ers’ pref­er­ence to deal with one exclu­sive rep­re­sen­ta­tive because it is eas­i­er for them, and, as Whit­ney writes, ​“con­ve­nience is no response to whether exclu­sive rep­re­sen­ta­tion is prop­er­ly tai­lored to the government’s legit­i­mate interest.”

Break­ing the peace

So far, we’re just talk­ing about pub­lic sec­tor unions because hav­ing the gov­ern­ment as employ­er, Alito’s right-wing con­spir­a­tors argue, con­verts all of the activ­i­ties of those unions into inher­ent­ly polit­i­cal acts. But if this Friedrichs log­ic takes hold, then arguably hav­ing the gov­ern­ment — in the form of the Nation­al Labor Rela­tions Board — com­pel unions to rep­re­sent work­ers they would choose not to (and per­haps vice ver­sa) might become uncon­sti­tu­tion­al as well.

Cur­rent­ly, the NLRB will only cer­ti­fy unions as exclu­sive rep­re­sen­ta­tives of all of the work­ers in a bar­gain­ing unit, and only if the union can win a major­i­ty vote. This is often an insur­mount­able thresh­old for unions to reach in the face of intense employ­er oppo­si­tion. In his 2005 book The Blue Eagle at Work, law pro­fes­sor and labor law expert Charles J. Mor­ris doc­u­ment­ed that in its ear­ly his­to­ry the NLRB used to cer­ti­fy minor­i­ty unions as the bar­gain­ing agent for their mem­bers only. Mor­ris argued that this path­way was still tech­ni­cal­ly open to unions to gain a foothold at a work­place and legal­ly com­pel an employ­er to rec­og­nize a non-major­i­ty union.

The mod­ern NLRB has dodged efforts by unions to get an advi­so­ry rul­ing on Mor­ris’ the­o­ry. But if the Friedrichs log­ic holds, pri­vate sec­tor unions may have a First Amend­ment chal­lenge to the NLRB’s con­tin­ued refusal to grant cer­ti­fi­ca­tions for just the mem­bers they choose to represent.

And that, if you’ll fol­low me down this rab­bit hole, could spell the end of con­trac­tu­al no-strike claus­es. They would sim­ply be unen­force­able in an envi­ron­ment of com­pet­ing, non-exclu­sive, mem­bers-only unions. Work­ers would sim­ply drop their union mem­ber­ships to par­tic­i­pate in wild­cat job actions. Or else join new work­place orga­ni­za­tions that have not signed agree­ments com­mit­ting to labor peace.

Don’t get me wrong. I don’t have any fan­ta­sy of some huge wave of poten­tial strike actions that would occur tomor­row if only the enraged work­ing class would stop being ​“repressed” by cur­rent union lead­er­ship and our cur­rent col­lec­tive bar­gain­ing agree­ments. But these no-strike claus­es go well beyond total shut­downs of pro­duc­tion to include all man­ner or slow-downs, work-to-rule and refusal to car­ry out selec­tive duties.

Any expe­ri­enced union rep read­ing this can recall at least one inci­dent of hav­ing to talk his mem­bers off a ledge — out of refus­ing a new duty or clock­ing out for lunch at the same time. These actions would be con­cert­ed pro­tect­ed activ­i­ty in a non-union work­place, but under a ​“no-strike” con­tract could result in all par­tic­i­pants legal­ly get­ting fired. How the hell are we sup­posed to get work­ers who don’t enjoy union pro­tec­tion fired up about tak­ing action against their boss­es, when their union­ized peers can’t set any kind of exam­ple in terms of actu­al­ly enjoy­ing their sup­posed protections?

It’s fun­ny that the First Amend­ment could make this pos­si­ble. Union rights in this coun­try are not con­sti­tu­tion­al­ly root­ed in the First Amend­ment, but in Con­gress’ pow­er to reg­u­late inter­state com­merce — which is one of the rea­sons that our labor laws make no damn sense. So, yes, Friedrichs could be a use­ful tool for labor by final­ly con­nect­ing our work to our rights of free speech and free assembly.

But if you’ve fol­lowed me down this rab­bit hole and are start­ing to get a lit­tle excit­ed about a pos­si­ble post-Friedrichs world, let me give you an ​“on the oth­er hand.” Heather Whitney’s First Amend­ment argu­ment for end­ing the duty of exclu­sive rep­re­sen­ta­tion would come before a Court that would not be weigh­ing it against a long-estab­lished prece­dent as Roberts’ Court is con­sid­er­ing Frei­drichs. It will be weigh­ing the argu­ment against a very recent Court decision.

If labor suc­cess­ful­ly caus­es enough chaos of the nature I’m dri­ving at — or even pos­es a cred­i­ble threat to do so — don’t be sur­prised if the Supremes try to put the lid back on Alito’s can of worms.