Exploring potential legislative ways to limit the damage of Friedrichs

Public sector labor unions across the country have been grimily preparing for the likely negative results  from the Friedrichs vs. California Teachers Association case heard two weeks ago. The opinion in Friedrichs (undoubtedly 5-4, written by a super smug Samuel Alito, with a vicious dissent coming from Elena Kagan) will likely ban union agency fees on the grounds of free speech.  

Previously, I have outlined why this opinion shouldn’t be conflated with the end of public sector unionism. Here, I outline a legislative step unions and workers might be able to lobby for to blunt some of the impact of yet another depressing Alito majority opinion.

One potential cause for hope is that there is no reason for an opinion reached on free-speech grounds to make it binding for the union to equally protect every member covered by the contract, which leaves some states with room to play with.  I say some states, because a standard feature of “right-to-work” laws bans unions from collecting agency fees in the first paragraph then makes them legally responsible for equally representing all people in the bargaining unit for ever and ever in the second paragraph. That of course is to encourage the freedom to freeload and keep any of those un-American ideas of workplace solidarity firmly out of these patriotic states.

However, in states with complete Democratic control of the government, there might be wiggle room on this. There’s not a lot: On pay and benefits, for example, negotiating for only union members leaves a government with incentive to underbid union workers and temporarily raise non-union members pay to drive the union out (even if it were legal, to represent only one group of workers within a class, which, well, that's complicated). 

But unions do provide other protections to workers beyond negotiating pay and benefits. For example, blue states could pass laws holding a union harmless for not representing a non-member in a disciplinary or grievance procedure. Under these circumstances, a union could essentially say the following to a non-member demanding representation in a disciplinary hearing:

“Look, we negotiated better pay and working conditions for you, and you’re welcome to those. And you’re welcome to this copy of the contract, which spells out your rights. Good luck representing yourself in the disciplinary proceedings against you.”

These laws wouldn’t be perfect: First, they’d leave locals with a tough choice: in some cases, it might be beneficial to represent non-payers with the idea of making them into payers and loyal members over the long term.  Nor do they eliminate the free-rider problem, even if it does limit it by reserving a very important set of on-the-job rights solely for union members.

Most significantly, these options are only practically available in states with full Democratic control: (seven with a chance to make 13 depending on how elections in Minnesota, Washington, Colorado and New York go this year and Illinois and Maine in 2018) or in states with GOP governors and Democratic Supermajorities in state legislatures (Massachusetts and Maryland). That would be slightly more than half the 22 states that currently allow for agency fees in public sector bargaining.

In any case, these sorts of union security laws would only be stopgaps. The long-term solution is to organize, organize, and organize some more. That will give workers more political power, better elected officials, and the ability to push for better legislation and judges – and the ability to protect them.

Solidarity.