Magazine | April 25, 2016, Issue

Labor Dodges a Bullet

The Supreme Court has spared public-sector unions from right-to-work laws, barely.

Organized labor emitted a loud sigh of relief on March 29 when the Supreme Court deadlocked in Friedrichs v. California Teachers Association. For acting as the agent for workers in collective bargaining, a public-sector union typically charges them fees even if they choose not to join the union, and Friedrichs failed to establish the unconstitutionality of that practice.

Two recent Supreme Court precedents — Knox v. SEIU (2012) and Harris v. Quinn (2014) — and the conservative justices’ questions at oral argument in January suggested to most observers that the Court was ready to strike down “agency fees” for non-members. Had the Court ruled in favor of the plaintiffs, it would have effectively declared a national right-to-work law for the public sector, forcing unions to recalibrate their money and membership to be more in line with their level of genuine support among workers.

The untimely death of Justice Antonin Scalia in February had made it possible for the Court to tie, 4–4, and it did. Consequently, it issued no opinion, and the controlling precedent, Abood v. Detroit Board of Education (1977), still stands. For supporters of individual freedom, First Amendment rights, and high-performing public service, it was an unfortunate outcome.

With the status quo prevailing, what does the future hold for public-sector unions in particular and for the labor movement in general? Public-sector unions can rest assured that their revenue streams and membership numbers will hold steady. Such unions, which will continue to rank among the biggest spenders on campaigns and candidates in many parts of the country, will remain among the most powerful forces in American politics.

For unions in general, agency-fee provisions goose membership rolls and bank accounts by allowing unions to charge non-members fees that nearly equal what they charge members in dues. Calculating that they are going to pay either way, many workers simply choose to join the union. Among those who refuse to join, some request a refund of the portion of their fees that is dedicated to political spending, but many neglect to do so. Moreover, unions have an incentive to low-ball their spending on politics: It enables them to keep more of non-members’ agency fees. The unions’ money is fungible. The line between their spending on politics and their spending on “member education,” for example, is blurry.

This is especially true of public-sector unions, which direct their political activity at the same entities with which they engage in collective bargaining: governments. (In the private sector, of course, unions direct their political spending at elected officials but sit across the bargaining table from business executives.)

Friedrichs exposed some serious problems in public-sector unions. The case provoked the California Teachers Association and other unions to try to figure out how to survive without agency fees. What the unions discovered was a lot of member dissatisfaction. Flush with money and feeling little need to make the case for the value of their services, union leaders had ignored the rank and file in many instances. Some had pursued political campaigns and other goals only weakly connected to members’ bread-and-butter interests in higher pay, better benefits, and improved working conditions. Some unions will probably be under pressure, for a little while, anyway, to persuade their members that the representation services they provide workers are worth the cost. Expect some hard-bargaining sessions and other displays of muscle for public-sector unions to prove their bona fides.

Public-sector unions remain hemmed in, enjoying little room to expand. Government employment has remained between 16 and 19 percent of the total work force for 50 years. Meanwhile, for the past 30 years, about 35 percent of public employees have belonged to unions. That percentage has mostly held steady but in recent years has begun to fall slightly, now that right-to-work laws in Michigan and Wisconsin have gone into effect. Although creative organizing and affiliation with private-sector unions and other types of labor organizations can add to the ranks of public-sector unions here and there, that will probably not be enough to move the needle significantly.

For opponents of agency fees in the public sector, the Court’s non-decision leaves two options. One is to continue to pursue the matter through the federal courts. The Center for Individual Rights, which represented the plaintiffs in Friedrichs, could ask for a rehearing when there are nine justices. However, if President Obama’s current Supreme Court nominee, Merrick Garland (or anyone, for that matter, nominated by Obama or by a Democratic president in 2017), were approved by the Senate, the balance of the Court would be tilted toward the liberals. The Court so constituted would be unlikely to rule that forced agency fees violated the First Amendment rights of workers who supported neither the union nor its political agenda. Indeed, the Court could even refuse to rehear the case.

Another option for opponents of agency fees is to return to the states the larger struggle over the power of public-employee unions. Change at the state level would probably be incremental. In California, New York, New Jersey, Massachusetts, and other states where labor is strong, public-employee unions would probably work to block any effort to rein in their power. However, other states — Kentucky, New Mexico, Missouri, and Montana are examples — may be poised to consider right-to-work laws that would diminish the public unions’ political power.

If five more states passed such laws, that would raise the number of right-to-work states to 31. But among the other 19 states are many of the nation’s most populous and most economically important, so unions would still control key political territory. Those tend to be deep-blue states where Democrats dominate the legislatures and hold the governorships, so reformers still have a steep hill to climb.

As for labor unions in the private sector, the outlook remains bleak. Membership in private-sector unions has been falling for decades. Today they represent only 6 percent of workers in the private sector. Organized labor in the private sector has little prospect of ever regaining the power it enjoyed in the mid 20th century, when 35 percent of private-sector workers belonged to unions. (In the mid 20th century, public-sector unions barely existed and were a vanishing percentage of the labor movement.)

Alas, the post-war world that underwrote the labor movement in its heyday has disappeared. Back then economic growth was robust. Today, it’s anemic. Then, American firms enjoyed huge global market share. Today, they face intense competition. Then, immigration was at all-time lows. Today, it’s approaching all-time highs. Then, the number of manufacturing jobs was growing. Today, it’s declining. Indeed, the Bureau of Labor Statistics predicts that the manufacturing sector, which shed more than 2 million jobs between 2004 and 2014, will shrink to only 7 percent of the work force by 2024. And the growing service sector has proved resistant to unionization. Your father’s labor union is gone, and it isn’t coming back.

Consequently, private- and public-sector unions alike are apt to continue to spend their resources on such causes as raising the minimum wage. That enhances their claim to altruism, as they work to help non-union workers (or at least those whose jobs would not be eliminated as a result). Remember, though, that a higher minimum wage would also create a higher wage floor from which union leaders could negotiate salaries for their members.

The war over public-sector unions, which is really where the action is, is likely to continue. They escaped what was shaping up to be a major defeat in Friedrichs. They have survived to fight another day.

– Mr. DiSalvo is an associate professor of political science at the City College of New York–CUNY and a senior fellow at the Manhattan Institute. He is the author of Government against Itself: Public Union Power and Its Consequences.

Daniel DiSalvo is an associate professor of political science in the Colin Powell School at the City College of New York–CUNY and a senior fellow at the Manhattan Institute.

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