In sports, there is a saying: “There’s nothing worse than a tie.” For public-sector unions, however, a tie is now reason to celebrate. Yesterday the U.S. Supreme Court announced it was deadlocked 4-4 over whether public-sector labor unions have the authority to force nonmembers to pay partial dues (“agency fees”) to keep their jobs. The tie, made possible by the February death of Justice Antonin Scalia, removed the likely deciding vote in favor of the plaintiffs, the leader of whom was a California teacher, Rebecca Friedrichs (in photo). During oral arguments in January, a 5-4 win for the plaintiffs appeared certain. The Court did not reschedule the case, and in so doing, left intact a dismissal of the plaintiffs’ claims by a federal appeals court. Mandatory fees remain a fact of life.
Union Corruption Update delved into this case at length last July. On June 30, the Supreme Court, in an unexpected move, had granted standing to Friedrichs v. California Teachers Association (CTA). The case represented an enormous threat to the power of the roughly 325,000-member CTA and other public-sector unions in nearly two dozen states. While public employees have the right not to join a union, they are not legally immune from being forced to pay financial tribute. Nearly 40 years ago, in 1977, the Supreme Court ruled in Abood v. Detroit Board of Education that a local teachers union with an active collective bargaining contract had the authority to deduct agency fees from the paychecks of covered nonmember employees. This case established the public-sector union shop. And public-sector unions, increasingly politicized and flush with cash, have used their clout since that time to elect political office-seekers and support legislation favorable to their interests. This has been a major reason for the rapid growth in wages, salaries and (especially) benefits – and subsequent fiscal crises in states such as California, Illinois, New Jersey and Rhode Island, plus any number of counties and cities.
Yet the edifice of forced public-sector unionism has proven vulnerable to challenge. Increasingly, the fiscal consequences had become evident across the political spectrum. The legal rationale for forced dues payments in the private sector were narrowing as well. The Supreme Court’s ruling in Communications Workers v. Beck (1988) firmly established the principle that a private-sector union may not deduct agency fees from reluctant nonmember employees covered by a contract; enforcement of this ruling has been ineffective due to obstruction from the “neutral” National Labor Relations Board. Two recent High Court rulings, while stopping short of overturning Abood, chipped away at its applicability and thus defended the rights of dissenting employees. In 2012, in Knox v. SEIU, the Court ruled 7-2 on merit and 5-4 on constitutionality that a Sacramento local of the Service Employees International Union had acted illegally in imposing a $60 per member special assessment to back an ad hoc group opposed to a pair of California ballot initiatives back in 2005. And in 2014, in Harris v. Quinn, the Court ruled 5-4 that nonunion private-sector home care providers in Illinois could not be forced to pay fees to a public employee union simply because a portion of their paychecks came out of state Medicaid funds. The majority opinion in that case, written by Justice Samuel Alito, hinted that the Abood decision itself was unconstitutional.
While Harris was under review, the Friedrichs case was underway. An Anaheim, Calif. teacher, Rebecca Friedrichs, joined by nine other non-union public school employees and a private school teachers group, sued the California Teachers Association, an affiliate of the National Education Association, to recoup fees that automatically were deducted from their paychecks. A Washington, D.C.-based nonprofit law firm, the Center for Individual Rights, filed the case in U.S. District Court in April 2013. At the request of the plaintiffs, the lower court and then the Ninth Circuit Court of Appeals dismissed the case. The goal of the plaintiffs was a Supreme Court review. And it happened. On June 30 of last year, the Court granted the case certiorari, in the process alarming and infuriating public-sector union leaders.
Oral arguments, heard this January, suggested an eventual 5-4 victory for Rebecca Friedrichs and her co-plaintiffs. But in the middle of the next month, Justice Antonin Scalia died of natural causes while on a trip to Texas. President Obama quickly nominated a successor, Merrick Garland, currently chief justice for the U.S. Court of Appeals for the District of Columbia Circuit. Senate Republicans, led by Majority Leader Mitch McConnell, R-Ky., however, have vowed not to consider any replacement nominee until 2017. The lack of a tiebreaking vote made a deadlock in Friedrichs a certainty. Each Supreme Court justice was firmly aligned in one camp or the other. The conclusion: a 4-4 tie was inevitable. And rather go through the motions, the Court simply announced it would not issue a ruling this or even next year. Forced public-sector unionism, for now, has won the day. At least supporters of worker liberty can take solace in the fact that the outcome does not apply nationally. The previous dismissal by the U.S. Court of Appeals, Ninth Circuit, is binding only upon the eight states under its jurisdiction: Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington.
Union leaders are ecstatic. Lily Eskelsen Garcia, president of the National Education Association, praised the High Court and castigated the plaintiffs with this prepared statement:
The U.S. Supreme Court today rejected a political ploy to silence public employees like teachers, school bus drivers, cafeteria workers, higher education faculty and other educators. In Friedrichs, the court saw through the political attacks on the workplace rights of teachers, educators and other public employees. This decision recognizes that stripping public employees of their voices in the workplace is not what our country needs.
This is pure sophistry. What “silences” is not a challenge to union authority to force fee payments from unwilling workers; it is the use of force itself. Employees have a right to decide for themselves whether or not to furnish financial support, and without having to go through an arduous and usually futile process of obtaining even a partial refund. The idea that non-payers are “free riders,” mooching off union benefits without paying for them, is nonsense. Fee payers bear costs as well as receive benefits. It is up to them to decide if the costs are worth it. Hopefully, with a full Supreme Court, a similar case will reach its docket and result in a ruling that protects liberty.