The nine dissidents lost, intentionally, in lower courts, but took their case to the High Court at the outright invitation in a prior court ruling by Associate Justice Samuel Alito. In a parallel, but more restricted case two years ago, Alito questioned whether any public worker unions had the right to require non-members to pay agency fees.
He didn’t win then. If he wins now, there would be wide ramifications for all workers, public and private, union and non-union, Parker said.
Alito suggested, and the nine – paid for and represented by the National Right to Work Committee and its legal “defense” fund – agreed that anything a public worker union does is political, and thus could violate the individual workers’ free speech rights.
“In partnership with public sector employers” – state and local governments – “public sector unions“ including SEIU “have helped to decrease costs, increase efficiency and increase quality while helping to create the middle class,” Parker explained.
“It’s true that workers, banding together, lift all boats,” she declared. By outlawing the right for unions to charge anyone even “agency fees” – not to mention membership dues – unions would lose funds that help workers band together and fight for their rights and a better standard of living, Parker stated.
Thus Friedrichs, she added, “is part of a much-larger attack on the ability of working people to band together” to protect themselves and improve their standards of living.
While Parker did not say so, the attack is highly partisan, led by anti-worker right wingers and business interests and their Republican political puppets, both in the U.S. Congress and in the states.
Their schemes include so-called right-to-work laws, destruction of public school teacher tenure – and public schools – and destroying decent wages for construction workers through bans on project labor agreements.
In one outstanding example, Gov. Scott Walker (R-WI) stripped most Wisconsin public worker unions of collective bargaining rights in 2011. The ones that kept their rights, including their right to collect union dues, were those that backed his 2010 campaign.
His strong-arm tactics for Act 10 sent 100,000 protesters into the streets of Madison in subzero midwinter weather. After Walker jammed it through the legislature, public union density dropped sharply. A Friedrichs win for the anti-union forces would make every state and local government a “right-to-work” employer, just like Wisconsin.
Andrew Pincus, a former top Justice Department official who filed a pro-union friend-of-the-court brief in the Friedrichs case on behalf of constitutional law scholars, noted government workers already have more-limited speech rights than private workers do.
If they speak out on matters of public concern, the Constitution’s 1st Amendment protects them, he noted. If they’re speaking within the confines of their job, it may not. “The government can do whatever it wants” to discipline them, within the limits of “a balancing test,” Pincus pointed out.
That means the nine dissident teachers could easily and publicly oppose their unions’ positions on public issues, like other citizens. And their agency fees don’t cover union political activities, either. But unless the nine prove that contract bargaining and grievance processes – defending workers – are also “political,” Pincus said, the agency fees are constitutional.
The nine, and their Right to Work backers, contend the fees aren’t constitutional because everything public worker unions do is political.
Parker and panelist Anisha Gupta, New York state’s deputy solicitor general, also stressed the practical impact of a decision for the Friedrichs dissidents. It would overturn almost 40 years of laws, precedents and cases involving public workers, following a 1976 High Court ruling in a case, Abood, involving the Detroit school board and its teachers unions.
“Where fair share fees don’t have to be paid, people don’t contribute” to the costs the union incurs to bargain for them and represent them, Gupta said. A final ruling is not expected before June.
- Mark Gruenberg, PAI Staff Writer