The Baltimore Sun Nicholas Florko April 7, 2016
Last week, the Supreme Court issued its first ruling since the death of Justice Antonin Scalia. The court's decision in Friedrichs v. California Teachers Association could have mortally wounded public sector unions, stripping them of their legal ability to collect the funds to keep their doors open. However, a 4-4 ruling ultimately allowed unions to live another day. For me, the case was personal. As a union member, a former union organizer and a member of a union household, a defeat for the California Teachers Association could have meant an unraveling of the organization I depend on to protect my rights at work. However, unlike many of my union brothers and sisters, I'm disappointed by the decision.
At stake in Friedrichs v. California Teachers Association was the legality of agency-shop agreements, which allow unions to collect money, known as agency fees, from employees working in a union workplace even if they decline membership in the union. These fees pay for the benefits all employees receive when they have union representation, such as contract negotiations and being represented in grievance proceedings. Without agency fees, the union is legally obligated to represent all workers in a bargaining unit — including non-members — but employees are not obligated to pay for those services.
Friedrichs v. California Teachers Association is just the latest attack on public sector unions through right-to-work (RTW) legislation, the controversial state legislation that has outlawed agency-shop agreements in 25 states. Essentially, a ruling for the plaintiff would have mandated that all states become right-to-work.
Right-to-work legislation means a death of unions via the "free rider problem." The ability to be represented by a union for free has led to an increase in employees who simply reap the benefits of the union without feeling compelled to pay their fair share. Not only do unions lose the agency fees that help keep their doors open, but many workers who otherwise may have joined the union because of the often small difference in cost between agency fees and union dues simply decline to pay anything at all.
An October study by the Economic Policy Institute showed that free riders represented 20.3 percent of bargaining units in RTW states, compared to only 6.8 percent in non-RTW states.
The number of free riders directly correlates to the health of a union. Without the funds to pay for union services, the organizations simply can't keep the doors open. The health of a union can be measured by union density, and the numbers don't lie: Right to work states had 17.4 percent union density, compared to 49.6 percent in non-RTW states.
I say this all to underscore how relieved I am by last week's ruling. However, to call the ruling a win would minimize the Republican-manufactured constitutional crisis that our nation currently faces.
While all union members should rightfully breathe a sigh of relief, no advocate of democracy should view the Friedrichs decision as a win. An affirmation of a previous ruling due to a gridlocked court, handicapped by a complete abdication of constitutional duty, is not a win.
Had the Senate hastily confirmed the Obama administration's Supreme Court nominee, Merrick Garland, perhaps unions also would have walked away from the Friedrichs case unscathed. Based on Judge Garland's previous rulings, it's reasonable to assume he would have ruled in the defendant's favor.
Judge Garland may have also excused himself from the case, as justices have done in the past after being appointed mid-case. However, at least that decision would have been made by a highly qualified justice who has dedicated this life to our legal system, not a politician looking to score political points.
Even if President Barack Obama's nominee had been less friendly to unions, I still would have rather had all nine justices presiding over the case. I am confident that the arguments for organized labor would have won out. Even if they hadn't, that is the nature of our democracy and the power vested in our highest court.
No one wants to win a fight with their opponents' hands tied behind their back, and that is exactly what this ruling was.