In what looks to be an ominous development for public-sector unions, the United States Supreme Court, on June 30, 2015, granted a petition for certiorari by the plaintiffs inFriedrichs v. California Teachers Association, a case out of the Ninth Circuit challenging the constitutionality of requiring public-sector workers who opt out of union membership to still pay union dues as part of “fair share fee” arrangements in collective bargaining agreements. It is ominous because a little over one year ago in the Supreme Court’s 2014 decision inHarris v. Quinn, Justice Alito wrote a majority opinion that blasted Abood v. Detroit Board of Education, the 1977 Supreme Court decision that was the seminal case upholding the constitutionality of fair share fees in the public sector. In Harris, Justice Alito noted thatAbood rested on “questionable foundations”, but since Abood was not directly at issue inHarris (rather, the defendants in Harris were arguing for an extension of the holding inAbood), the majority did not address whether Abood should be overruled. In contrast, inFriedrichs, the validity of Abood has been directly challenged and it appears the Supreme Court is now willing to revisit Abood and decide whether forced fair share fees for public-sector unions should now be deemed unconstitutional.

Background

Under both private- and public-sector collective bargaining laws, when a union is certified as the exclusive representative of a group of employees it becomes the representative of a particular “bargaining unit.” A bargaining unit is generally defined by listing or describing the job positions that fall within it. One common example in the public sector is “all sworn police officers below the rank of sergeant.” All employees whose job positions fall within the definition of the bargaining unit constitute “bargaining unit members”; that is, members of the union that represents them. The union representing the bargaining unit then negotiates a contract (i.e., the collective bargaining agreement) with the employer that governs the terms and conditions of employment for all bargaining unit members.

However, an employee within the bargaining unit when it is certified, or an employee hired into a job position within the bargaining unit after it is certified, can opt out of union membership. Even though the employee opts out, his or her terms and conditions of employment are still governed by the collective bargaining agreement the union negotiates and administers. To solve this so-called “free rider” problem where an employee opts out of union membership but still obtains the benefits of the contract, most public-sector unions negotiate a “fair share fee” provision into the collective bargaining agreement. This fair share fee provision states that even though an employee holding a job within the bargaining unit opts out of union membership, he or she must still pay union dues, or a “fair share fee,” to cover the union’s costs of negotiating and administering the collective bargaining agreement that benefits the employee.

The plaintiffs in Friedrichs are public school teachers in California who opted out of union membership and who challenge whether, under the First Amendment to the U.S. Constitution, they can be required to pay a “fair share fee.” The plaintiffs specifically contend that the U.S. Supreme Court’s decision in Abood that upheld fair share fees in response to a First Amendment challenge was wrongly decided and ask that it be overturned. In fact, at the trial court level, the plaintiffs moved for judgment on the pleadings, but in the defendants’ favorarguing that Abood foreclosed their claims. The trial court granted that motion and dismissed the case. The plaintiffs then appealed to the Ninth Circuit, where they asked the appellate court to summarily affirm the trial court’s decision, which it did. The plaintiffs then petitioned for review before the U.S. Supreme Court, which just granted that petition on June 30, 2015. In other words, the plaintiffs in Friedrichs did everything possible to speed this case to the Supreme Court on the issue of whether Abood was wrongly decided.

What this case could mean

The Friedrichs case now heading to the U.S. Supreme Court is of absolutely monumental importance from a political perspective.

First, the combination of the right to opt out of a union plus the right not to pay a fair share fee is, without any doubt, the most effective way to eliminate public-sector unions. Two prime examples are Indiana and Wisconsin. When Indiana eliminated forced payment of fair share fees, public-sector unions in the state lost 91 percent of their membership. More recently, Wisconsin eliminated forced payment of fair share fees and, as a result, AFSCME (short for American Federation of State, County and Municipal Employees and one of the largest public-sector unions in Wisconsin) has lost 50 percent of its membership so far. It should be noted that Wisconsin was the birthplace of public-sector unions and, even there, the public-sector unions are having a horrible time retaining their members when dues payment is not compulsory.

Second, unions and especially public-sector unions, are some of the largest political campaign contributors in the country and almost exclusively donate to the Democratic Party. According to the Center for Responsive Politics, which compiles campaign contributions data reported to the government, unions were 14 of America’s top 25 political donors for the period of 1989-2014, with anywhere from 95 percent to 99 percent of the contributions going to Democrats over Republicans. The second largest contributor in the entire country during this period was AFSCME. The fourth largest contributor was the National Education Association while the American Federation of Teachers was the twelfth largest contributor. Both represent public school teachers. Other unions representing public-sector workers also made the top 25, such as Service Employees International Union, the Communications Workers of America, and the AFL-CIO. For some perspective, AFSCME contributed more to politicians during this time period than Wall Street’s Goldman Sachs and JP Morgan Chase & Co. This also does not take into account the ability of unions to rally their membership to conduct campaign activities for candidates, such as door-to-door outreach and vote mobilization. In short, public-sector unions are dominant players in politics and eliminating them by eliminating fair share fees will be a blow to the Democratic Party and a boon for the Republican Party. Alternatively, even just reducing public-sector union membership and thus the flow of dues will tilt the political scales.

As a result, the stakes are high and the dispute is going to be highly polarizing and politicized. While Indiana and Wisconsin, two states that have recently been controlled by the Republican Party, were able to change the rules on fair share fees through the democratic process, there is no likelihood of such changes in states completely controlled by Democrats now and in the foreseeable future, such as California. However, a ruling from the U.S. Supreme Court overturning Abood will change that, and instead nationalize a ban on forced payment of fair share fees in the public sector.

In sum, if the Supreme Court uses Friedrichs to overturn Abood, it could absolutely cripple public-sector unions and dramatically reduce large amounts of campaign contributions to Democrats. No doubt Republicans understand the advantages of eliminating forced fair share fees, just as Democrats understand the advantages of retaining them. Whatever your political persuasion, or feeling about unions, the Friedrichs case is one to watch closely.