A short-handed Supreme Court threw the labor movement a lifeline, dismissing a challenge to rules on public sector collective bargaining fees.
“The judgment is affirmed by an equally divided Court,” the Justices announced in a one sentence ruling. The move upheld a decision by the Ninth Circuit Court of Appeals to dismiss the case, Friedrichs v. California’s Teachers Association.
Just months ago, such an outcome seemed impossible, as this and other publications noted. That changed on Feb. 13, when Justice Antonin Scalia suddenly died.
“When the Supreme Court ties 4-4, no precedent is set,” labor lawyer Moshe Marvit explained for In These Times magazine, days after Scalia’s death. “Anyone in labor worried about that outcome in Friedrichs can rest a bit easier remembering that no precedent is needed here.”
The case hinged on a California law that forces public sector employees to pay a “fair share service fee” or “agency fee,” designed to cover the cost of collective bargaining and lobbying.
The New York Times noted that more than twenty states require non-union public sector workers to pay similar fees, and that a victory for the plaintiffs “would have affected millions of government workers and weakened public-sector unions.”
An undermining of mandatory agency fees would drain labor unions of funds needed for collective bargaining. It would have also encouraged state workers to drop out of unions, with free-riding on negotiated benefits suddenly possible.
Such a development could have dealt a serious blow to the labor movement in the United States. About 35 percent of public sector workers belong to trade unions. Unionization in the private sector is at about 6.6 percent.
Plaintiffs were supported in their case by a range of conservative think-tanks and business interests, claiming public sector workers’ First Amendment rights were being violated. Filing briefs in support of the challenge were Koch-backed political groups, the CATO Institute, the National Federation of Independent Business (NFIB), and a number of Republican State Attorneys General. Defendants were supported in filings signed by a range of labor unions, the aforementioned state governments with laws on agency fees, the City of New York, and top Obama administration officials.
Notably, Michigan’s Republican Attorney General Bill Schuette argued for plaintiffs that “collective bargaining can also create roadblocks impeding environmental compliance.” The administration of Gov. Rick Synder (R-Mich) is currently being investigated by the Justice Department for contaminating the drinking water of Flint, Mich.
If the Senate confirms Merrick Garland, President Obama’s nominee to replace Scalia, that could ensure unions will avoid a judicial branch threat like Friedrichs for a generation.
The NFIB, for example, has vociferously opposed Garland, noting his record on the DC Circuit Court of Appeals. In a Wall Street Journal op-ed, NFIB CEO Juanita Duggan, said that the nominee “would be a strong ally of the regulatory bureaucracy, big labor and trial lawyers.”
As Bloomberg BNA pointed out, Garland has ruled in over 21 DC Circuit decisions involving National Labor Relations Board (NLRB) orders, and that the influential appellate court upheld NLRB enforcement in 17 of the disputes. And OnLabor’s Hannah Belitz noted that when Garland joined the majority in four cases to rule against the NLRB, his opinions “suggest an outlook that is generally favorable to union activity.” In one of those cases, the DC Circuit ordered the NLRB to review a petition alleging unfair labor practices by managers of a grocery store.
Belitz also pointed out, however, that Garland’s rulings may be more indicative of “agency deference” than pro-labor leanings–a propensity to allow the Executive Branch to operate. Garland’s rulings on national security matters, for example, show a not dissimilar reluctance to constrain presidential power.
The precedent that was being challenged by Friedrichs was set by the Supreme Court in 1977.
