Monday of next week (January 11) marks a major milestone in the effort to bring employee rights in the workplace to teachers and other public-sector employees. The Supreme Court will hear a case titled Friedrichs v. California Teachers Association et al., brought by California teacher Rebecca Friedrichs (and other teachers) against her National Education Association-affiliated teachers union.
The NEA and other public-employee unions (including Randi Weingarten’s American Federation of Teachers) are on high alert: The Court is considering striking down state laws that require non-members of public-sector unions to pay forced dues assessments (called “agency fees”) or lose their jobs. In effect, a ruling in favor of Friedrichs and her fellow teachers could make all states “right to work” for state and local employees, a substantial expansion of employee rights. The NEA is reportedly budgeting in the expectation that it may lose the case.
Court-watchers regard the crucial vote in the case to be that of typically conservative Justice Antonin Scalia. If that assessment is accurate, it may not end well for the unions: Scalia was regarded as a potential enabler of the SEIU “dues skim” overturned by Harris v. Quinn, the case that opened the door for the Friedrichs challenge. He sided against the unions in that case, and the forced dues portion of the skim was overturned.
It’s important to note, however, what a favorable ruling wouldn’t do. Contrary to union cries that a ruling in favor of Friedrichs and the other teachers would “threaten the fundamental promise of America,” public-employee unions would still be able to collectively bargain in states that have public-employee collective bargaining and still collect dues from members. Private sector employees would be completely unaffected by a decision either way.
But importantly, ruling against the unions would give public employees a meaningful choice on whether to support union activities—activities that the nature of public employment assures is political. The fundamental contradiction at the heart of public-sector unionism—that employees can “elect” management and bargain over what are true public policies—makes forcing non-member employees to pay dues equivalent to forcing them to support unions’ political agendas.
The Court has consistently held that it’s a violation of the First Amendment to force employees to fund political agendas with the only other option being loss of a job. (The right created by the court is hard to exercise and doesn’t go far enough, but that’s a separate issue.) There’s hope that for public employees at least a significant expansion of rights could be just around the corner.