Legal Watch: Friedrichs Redux?

On June 6, 2017, in a continuing attempt to undermine unions, the National Right to Work Legal Foundation filed a petition for review in the Supreme Court seeking to have agency fees ruled unconstitutional for public-sector employees in a case called Janus v. AFSCME Council 31. Last year the Court was presented with this same issue in Friedrichs v. California Teachers Association, a case in which the AAUP filed an amicus brief jointly with the American Federation of Teachers, arguing the Court should reaffirm its forty-year precedent in Abood v. Detroit Board of Education that agency fees are constitutionally permissible. After oral arguments, the Court appeared headed toward a 5–4 decision to overrule Abood. Following the death of Justice Scalia, however, the Court’s 4–4 decision affirmed the lower court without addressing the merits of the issue, leaving Abood intact. The recent appointment of conservative Supreme Court justice Neil Gorsuch, though, lays the groundwork for the Court to grant review in Janus and consider the issue again.

Agency fees, or fair-share fees, ensure that employees who are not union members but benefit from collective bargaining pay their fair share of the costs of negotiating and enforcing the collective bargaining agreement. Nonmembers are not compelled to pay for expenses related to union political activities. The plaintiffs in Janus, as in Friedrichs, assert that requiring agency fee payments violates their First Amendment rights of speech and association. The Supreme Court rejected this claim in Abood, finding that any effect on nonmembers’ First Amendment interests is outweighed by the state’s interests in enforcing agency fees. As Justice Elena Kagan explained in her dissent in the 2014 Harris v. Quinn case, “For some 40 years, Abood has struck a stable balance— consistent with this court’s general framework for assessing public employees’ First Amendment claims—between those employees’ rights and government entities’ interests in managing their workforces.” The Abood balance considers the benefits of collective bargaining to state governments’ interests as employers in promoting positive and stable workplace relationships. In addition to negotiating for higher wages, benefits, and job security, unions often work with employers to improve working conditions. For example, AAUP collective bargaining agreements include joint faculty-administration committees on issues such as environmental safety, paid parental leave policy, workload, and faculty professional development.

Agency fees support unions’ ability to fulfill their legal obligation to fairly represent all employees in the bargaining unit, whether or not they are union members. Even Justice Scalia recognized this, stating in the 1991 Lehnert v. Ferris Faculty Association case, “What is distinctive, however, about the ‘free riders’ who are nonunion members of the union’s own bargaining unit is that in some respects they are free riders whom the law requires the union to carry—indeed, requires the union to go out of its way to benefit, even at the expense of its other interests.” By the time of the Friedrichs oral arguments, however, Scalia appeared inclined to find agency fees unconstitutional, based on the view that all public-sector collective bargaining is political in nature.

Seeking to undermine unions at an even more fundamental level, the National Right to Work Legal Foundation has also filed a petition for review by the Supreme Court in Hill v. SEIU, claiming that exclusive representation by unions in the public sector violates the First Amendment. The lower court rejected the claim, relying on established Supreme Court precedent that the union’s status as exclusive representative in collective bargaining does not infringe nonmembers’ right to speak out publicly on any subject or to associate outside the union however they might desire.

It seems unlikely that the Supreme Court would grant review in both Janus and Hill. Further, while a majority of the Court may be poised to overrule Abood and eliminate agency fees in publicsector workplaces, it may be too far a stretch for the Court to accept a wholesale attack on the fundamental structure of exclusive representation of public employees.

No matter what the outcome is in these two cases, we can expect more attacks on unions in the courts and legislatures. Twenty-eight states have enacted so-called right-to-work laws that prohibit agency fees. As we continue to fight against these attacks, it is important to remember that in the face of adversity, employees can and do organize. We must remain focused on the power of organizing to build union membership and expand the labor movement to work for social justice and fairness for all employees.

Risa L. Lieberwitz is professor of labor and employment law at Cornell University and general counsel of the AAUP.