The End of Public Employee Unions?: The Supreme Court Gets Ready to Reverse Precedent

The End of Public Employee Unions?: The Supreme Court Gets Ready to Reverse Precedent

On June 30, the United States Supreme Court agreed to reconsider a 38-year-old precedent which established the right of public employee unions to require non-union workers to pay dues as a condition of employment. Two Supreme Court decisions issued in 2012 and in 2014, as well as the June 30 grant of Certiorari, signify that at least four Justices would reverse this precedent or, at a minimum, protect so called dues objectors from allowing their dues to be expended for causes of which they do not approve, without their affirmative consent.

In order to have a sense of background on this issue, litigated as it has been in one form or another before the Supreme Court for more than a half century, it is important to understand the framework of the law and its assumptions. In most states which have public sector labor legislation – and in the private sector as well, unions function as the exclusive bargaining representative for all employees within a so called appropriate unit or grouping of employees who possess a community of interest with one another. In order to be the exclusive representative, a union must gain majority support – a majority of those who may have varying views about unions and their causes. The threshold for majority support in any state conducted election is more than 50 percent support of all employees – in contrast to political elections where the winner is simply the party that gets the most votes.

Once a union obtains majority status as exclusive representative it bargains on behalf of all workers, both union and non-union, alike. And for decades it has been clear that a union has a duty of fair representation toward all of the employees that it represents without regard to union status.

This then is the backdrop for “fair share” clauses negotiated in collective bargaining agreements – or union security clauses as they are called in the private sector. These negotiated agreements (and there is no compulsion to negotiate anything) require all employees to pay for negotiation and grievance adjustment expenditures. This is “fair” runs the argument, because all get the same services from the exclusive representative whether they involve wages, fringe benefits, working conditions or the resolution of disputes.

The litigation initiated by California school teachers, which will now be heard by the High Court, was commenced by non-union or dissident teachers who object to union dues on two levels. First, they maintain that all public sector negotiations, since they involve expenditures to be made by the state, involve political decisions and such employees contend that the requirement that they pay for such negotiations is a violation of their First Amendment rights of free speech not to participate in causes to which they object – in other words that the speech here is compelled. Since the state is involved, the argument is that the state (its involvement is a prerequisite for invocation of the Bill of Rights) has violated constitutionally protected rights.

Second, the argument is that, when the Union expends dues for political activity, such workers have their constitutional rights violated unless they affirmatively consent. In both the public and private sector the Supreme Court has assumed that objecting workers seeking to obtain a rebate of a portion of their dues have the burden to express their disagreement with the political because the majority has already spoken by supporting collective bargaining between the union and employer. The four justices who seek to overrule precedent contend that the demarcation line between expenditures for negotiations and the processing of grievances on the one hand and politics on the other is necessarily fuzzy and produces litigation.

There are two basic ironies in this debate. In the first place for more than a quarter of a century the Supreme Court has held that employees who have grievances with public employers cannot use the First Amendment or, as the court has said, constitutionalize their grievances. Yet now at least four justices have expressed their view that dissident workers who refused to pay dues to a union have a constitutional right vis a vis government and unions. This is an obvious double standard which was summarily pushed to one side by the Supreme Court in June 2014, the last time the matter was in that forum.

Finally, unions in the United States and the West were born out of political protest before they engaged in collective bargaining. For instance, one of the key demands of the unions in the 19th and 20th centuries was the eight hour day. That concession was obtained from the state and not employers. Yet now the Supreme Court’s interest in marching down the road toward repudiation of precedent seeks to remove public sector unions from improving employment conditions for workers on the ground that they are suppressing the rights of the non-union employees to object (the private sector unions have already been removed from negotiating such clauses by right to work legislation recently enacted in states like Michigan, Indiana and Wisconsin).

The Supreme Court looks poised to cripple public employee unions and collective bargaining, though Justice Scalia has not definitively committed himself. The good news is that Justice Scalia can still tip the balance. The bad news is that Justice Scalia can still tip the balance.

William B. Gould IV has been an influential voice on worker-management relations for more than forty years and served as Chairman of the National Labor Relations Board (1994-98) and Chairman of the California Agricultural Labor Relations Board (2014-___). Professor Gould has been a member of the National Academy of Arbitrators since 1970 and has arbitrated and mediated more than 300 labor disputes. As NLRB Chairman, he and his agency played a critical role in ending the longest strike in baseball history (1994-95)—and he was a salary arbitrator in the 1992 and 1993 salary disputes between the Major League Baseball Players Association and the Major League Baseball Player Relations Committee. He is the author of Organized Labor, the Supreme Court, and Harris v Quinn: Déjà Vu All Over Again?

(2014 The University of Chicago The Supreme Court Review Vol. 2014, No. 1, January 2015, pp. 133-173).