According to the Bureau of Labor Statistics, the percentage of unionized wage and salary workers in the U.S. dropped to 11.1 percent in 2014 from 20.1 percent in 1983. The unionization rate in the private sector stands at an abysmal 6.6 percent. The public sector, by contrast, boasts a unionization rate of 35.7 percent.
The Republican-dominated U.S. Supreme when it reconvenes will be considering the case of Friedrichs v. California Teachers, which poses what some observers have called an “existential threat” to public unions and by implication to the entire US labor movement. At issue in Friedrichs is the right of public sector unions to collect limited “fair-share” fees in lieu of full formal dues from non-union workers to defray the costs of collective bargaining that benefits all employees. The aim of the case is the crippling of public sector unions, both as bargaining agents for government workers and as sources of political funding and donations for liberal political candidates and campaigns.
A decision against the teachers association would have the potential to bankrupt government employee unions and turn the nation’s entire public sector into one enormous “right-to-work” jurisdiction. Under current law, no one can be forced to join a union, even one that has been elected by a majority of workers to negotiate on their behalf. In non-right-to-work states, however, unions nonetheless can collect mandatory fair-share fees from workers who want to keep their jobs without becoming union members. Typically, dissenting nonunion workers are billed for full regular union dues, but they have the right to “opt out” of making full payments, remitting instead only the fair-share fees that are needed to help the union meet expenses for collective bargaining. Fair-share fees (also called “agency” fees in reference to the union’s status as the sole agent authorized to act on bargaining) cannot be used to pay for other union expenses, such as contributions to political campaigns and most lobbying.
In a 1977 decision dealing with government unions, Abood v. Detroit Board of Educatio, the justices upheld the constitutionality of fair-share fee systems. But the Roberts court has steadily chipped away at the Abood rule. Starting in 2012 with its opinion in Knox v. SEIU and continuing with its 2014 decision in Harris v. Quinn, the court’s five Republican appointees have emphasized that the payment of union dues by public employees is a form of political speech subject to the constraints of the First Amendment because public unions negotiate contracts with governmental entities and such contracts by definition affect public policies and the spending of taxpayer money. The First Amendment, they reason (and here is where the twist sets in), protects not only the affirmative right to speak but also the passive right not to be compelled to speak or compelled to endorse the offending speech or acts of other people or groups. Requiring dissenting employees to pay fees to a union they don’t want to join, the analysis continues, amounts to such compelled speech in violation of the First Amendment.
The Supreme Court under the leadership of Chief Justice John Roberts has passed a number of anti-worker judgements. As a study published in January by The Nation explains, it ruled for restricted gender-based discrimination and class-action lawsuits against corporations; curbed age discrimination claims; limited the availability of overtime pay; redefined the term “supervisor” to allow employers to avoid liability for harassment; and made it more difficult for employees to prosecute workplace retaliation grievances.
In the aftermath of Wisconsin’s Governor and now Republican presidential hopeful, Scott Walker’s 2011 assault on public unions and the state’s subsequent implementation of right-to-work policies, the declines in public union membership and dues collected have been enormous in Wisconsin, according to The Washington Examiner. The Madison local of the American Federation of State County and Municipal Employees has lost 18,000 of its previous 32,000 members and has seen its annual revenue fall from $10 million to $5.5 million.
The lesson is clear: Kill the fair-share regime and you kill public sector unions. Kill public sector unions and you kill off the labor movement as a whole.