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.

In This Issue



Books, Arts & Manners


Politics & Policy


Why Banks Hate Bucks In his piece “The Abolition of Cash” (April 11), Andrew Stuttaford left out the “drag” on the economy imposed by the “cut” that the banks and processing ...
Politics & Policy

The Week

‐ Lindsey Graham has proven he’s willing to do just about anything to stop serving in the Senate alongside Ted Cruz. ‐ Could Paul Ryan emerge from the Republican convention with ...
The Long View

Choose Your Adventure!

The Republican Party Edition™ BEGIN HERE Republican-party front-runner Donald J. Trump pads into the “thinking room” in his elegant, palatial Palm Beach estate, Mar-a-Lago. As he sits on his gilded and intricately ...
Politics & Policy


WHO IS THE STRANGER WHO OVERTAKES ME Who is the stranger who overtakes me On a dark street and taps me on the shoulder? I turn and there is nobody there but me, And ...

Most Popular

White House

Trump and the ‘Racist Tweets’

What does “racist” even mean anymore? Racism is the headline on President Trump’s Sunday tweets -- the media-Democrat complex assiduously describes them as “racist tweets” as if that were a fact rather than a trope. I don’t think they were racist; I think they were abjectly stupid. Like many ... Read More
White House

The Trump Steamroller

As we settle into high summer and the period of maximum difficulty in finding anything to fill in hours of television news, especially 24/7 news television, two well-established political trends are emerging in this pre-electoral period: The president’s opponents continue to dig themselves into foxholes that ... Read More

Men Literally Died for That Flag, You Idiots

The American flag’s place in our culture is beginning to look less unassailable. The symbol itself is under attack, as we’ve seen with Nike dumping a shoe design featuring an early American flag, Megan Rapinoe defending her national-anthem protests (she says she will never sing the song again), and ... Read More
Politics & Policy

Ilhan Omar Is Completely Assimilated

Beto O’Rourke, the losing Texas Senate candidate who bootstrapped his way into becoming a losing presidential candidate, had a message for refugees who had come to America: Your new country is a hellhole. The former congressman told a roundtable of refugees and immigrants in Nashville, Tenn., last week: ... Read More

We All Wanted to Love the Women’s Soccer Team

For the first time in my life, I did not root for an American team. Whatever the sport, I have always rooted American. And if those who called in to my radio show were representative of my audience, many millions of Americans made the same sad choice. It takes a lot for people like me not to root for an ... Read More
White House

On Gratitude and Immigration

Like both Rich and David, I consider it flatly inappropriate for the president of the United States to be telling Americans -- rhetorically or otherwise -- to “go back where you came from.” In consequence, you will find no defense of the president from me, either. What Trump tweeted over the weekend was ... Read More

The ‘Squad’ Gives a Gift to Donald Trump

On Sunday, Donald Trump gave the Democrats a gift -- comments that indicate he thinks native-born congresswomen he detests should “go back” to the countries of their ancestors. On Monday, the four congresswomen handed Trump a gift in return, managing to respond to the president’s insults in some of the most ... Read More

The Plot against Kavanaugh

Justice on Trial, by Mollie Hemingway and Carrie Severino (Regnery,  256 pp., $28.99) The nomination and confirmation of Brett Kavanaugh to the Supreme Court was the political event of 2018, though not for the reasons anyone expected. All High Court confirmations these days are fraught with emotion and tumult ... Read More