The likely outcome of Friedrichs will hurt labor -- but it won't destroy it

Two weeks ago, progressives had their days ruined by oral arguments in the Supreme Court in the case Friedrichs vs. California Teachers Association. The case has led to numerous breathless headlines declaring that this will be the end of public sector unions in the United States, comparing the case to what happened to unions in Wisconsin, where organized labor has been in a depressing tailspin since the passage of Act 10 in 2011, which eliminated collective bargaining rights for most public sector unions.

Those comparisons are far overblown: Freidrichs will hurt public unions, but they still will retain most of their rights. Here, I’ll discuss what the likely decision against the unions will do to hurt worker’s rights, but I’ll also emphasize that it’s important to remember that workers will retain considerable rights to bargain – unlike in Wisconsin.

First the bad:

 It seems that a majority of justices are willing to take the radical step of declaring that anything public sector unions do, including the nuts and bolts of collective bargaining, is an inherently political activity.

Therefore, public sector unions assessing mandatory fees from non-members would be unconstitutional and violate non-members first amendment rights to free speech, despite the fact that unions have to represent all of their employees in the bargaining unit and that all members of the bargaining unit shares in the higher salaries, better benefits and better working conditions achieved through collective bargaining.

Never mind that unions are democratically chosen as bargaining agents, and (usually) governed by local officials directly elected by the membership and can be decertified by a majority vote if the bargaining unit doesn’t like what it’s doing. (Apparently the results of democratic elections only matter for Sam Alito when they enact discriminatory sanctions against gay people)

Never mind that for 40 years, precedent established by Abood vs. Detroit Federation of Teachers, which reasoned that public sector unions (if permitted by state law) can charge agency fees to all members of the bargaining unit to cover representation costs, so long as they didn’t charge non-members money for specifically political activities.

So things are bad. Justice Sam Alito’s almost inevitable opinion is going to hurt the finances of a lot of public sector unions both at the local and at the state and national level. Making membership optional will not only lead to unions losing agency fees from workers who aren’t members, but will likely cause some members to opt out when they realize they can get the benefits of the union contract without having to pay the union. For some units, this will cause financial catastrophe. Think about what would happen to U.S. government functions if it were optional to pay taxes (Or just think about what already happens to U.S. government finances because for some large multinational businesses and lucky wealthy individuals, it sort of is optional to pay taxes -- at least in the U.S.).

Now the not-so-bad:

But Friedrichs isn’t the end of public sector unionism or unionism period. So, in the panic let’s remember the power that public sector unions will retain in states that we can elect good governments in.

A comparison to Scott Walker’s Wisconsin is useful.

Public sector unions, especially those recognized as formal bargaining agents, have collapsed in the state.  However, that’s because Act 10 essentially made it illegal to collectively bargain for all non-public safety employees. That doesn't mean merely making agency fees illegal (what Friedrichs and "Right-to-Work" laws will do), but includes almost everything else a union and its employer would want to govern over as well (see the legislation summary section here). 

Take the most egregious example: To serve as a collective bargaining agent, unions have to win a recertification election every year with a majority of those in the bargaining unit, not just those voting. Essentially, not voting is the same as voting “no.” The assumption goes from the status quo continuing to “no union as bargaining agent unless you can win an election rigged against you every year.”

What’s worse is that units that manage to win the election can’t really bargain anything. Contracts can only be for one year, and the only thing that the contract can cover is the size of a raise, which can’t be more than inflation Some categories of workers in the state university system even lost those rights.

That’s right, in Wisconsin, public sector employees (aside from police and firefighters, of course) can essentially only bargain over how much to cut their pay every year. No rights to bargain for health benefits or insurance premiums (which tripled for graduate employees at the University of Wisconsin before and after the passage of Act 10). No rights to bargain for fair hiring or firing policies. No rights to bargain for safe working conditions, or class sizes, or patient loads, or hours, or vacation time, or sick time, or non-arbitrary disciplinary procedures or LGBT protections, or sexual harassment reporting standards or….

You get the picture.

The good news is that an adverse ruling in Friedrichs won’t do any of these things.  It would take away a critical means of funding union activities, and do so based on a dubious argument, but in itself doesn’t take away the rights to bargain for wages, benefits, paid time off or workplace conditions. Those are all still governed by applicable state laws.

It’s true that in some states, many of those rights are being trimmed back, so the counsel here isn’t “don’t worry, be happy,” but rather “don’t give up the fight in despair – we still have plenty to fight for and many areas that we can protect or advance our interests.” Unions still have many things to bargain over, especially in states in which we elect good public officials. Elections still matter.  And so will collective bargaining.  And so will the labor movement.

So take heart, pass the ammunition and, above all, keep organizing!

Solidarity.