No, of course not. But that’s not going to stop some labor reporters from trying to make the case, as they usually do with anti-labor legislation or decisions. In this case, Shaun Richman claims it could help unions escape speech restrictions that limit their activities.
Public sector unions, whose ability to function is immediately at stake in the Friedrichs case, are not covered by the federal labor act. Instead, many states passed laws that are modeled on the NLRA. But with a crucial difference: when bosses get to pass laws that apply to their employees (which, if you think about it, is exactly what public sector labor law represents), they’re guaranteed to make it even more unfavorable than private sector rules.
Unsurprisingly, many states make strikes by public sector employees like the CUNY faculty and staff totally illegal, or else severely restrict them. Many states also make many union demands illegal, either by statute or by judicial decisions. The Friedrichs case, by inserting public employees’ 1st Amendment rights into collective bargaining could give unions a very useful tool for reversing many anti-union measures that are on the books.
So, in order to overturn this long-settled precedent the parties behind Friedrichs—egged on by Justice Alito—are lodging a wildly expansive argument that every interaction that a union has with its government employer is inherently political. Bargaining demands, grievances, labor-management committees, job actions: all of it, goes the Friedrichs argument, is political, thereby making the collection of agency fees compelled political speech.
Let’s think about some of the implications of this argument. For starters, the Taylor law that tells CUNY faculty and staff that they will be fined and their leaders imprisoned if they strike seems clearly to be a coercive restriction on their chosen method of political speech. If the Professional Staff Congress is hit with any penalties for either planning or going through with a job action, one hopes they can time their appeals to reach higher level courts after the Friedrichs decision comes down in June.
Perhaps most deliciously, the right-wing Friedrichs effort is in direct opposition to Gov. Scott Walker’s offensive agenda in Wisconsin. Walker’s anti-union Act 10 did a lot of nasty things to public employees, some of which will continue to stand. It took away payroll deduction and forced unions to annually recertify as the collective bargaining agents for their members.
But what mostly caused union membership to plummet in the state was that certified unions were prohibited from bargaining over anything of substance; not just raises that exceed inflation, but duties, hours and work schedules and every other everyday issue that workers want to have a voice at work about.
If Justice Alito gets his way, then Scott Walker is suddenly massively violating the free speech rights of Wisconsin public employees. I humbly suggest that every union still certified demand to bargain the day after the decision. They could throw their old contracts on the table and sue every school board and state agency that refuses to discuss those items. I’d also suggest that they begin drawing up some new picket signs.
The problem with this is political. It’s entirely likely that the partisan New Gilded Age SCOTUS hacks who would make Stephen Field and David Brewer proud will simply issue a ruling on these issues contradictory to Friedrichs to fit their own political positions. Maybe there’s an interesting precedent here, but these precedents have to be recognized by courts first. I sure don’t see Alito and Roberts doing so. Friedrichs itself is already going to be counter to the Court’s own rulings on corporate free speech. Look at Kennedy’s reasoning in oral arguments:
There is another important distinction between the teachers who brought the new case and investors in companies. The First Amendment is a limit on government power, and it does not directly affect private agreements, whether between companies and shareholders or between private employers and their workers.
But at last week’s argument, Justice Kennedy mused about whether that should be so, at least in the context of labor unions.
“I think that’s correct as a basic distinction,” he said of the difference between the government and private employers. But he told the teachers’ lawyer that laws requiring workers at private firms to pay fees to their unions could also raise a First Amendment problem.
“That is state participation in the very kind of coerced membership and coerced speech that you’re objecting to,” Justice Kennedy said of such laws.
Also, I think Richman misstates what caused union membership in Wisconsin to collapse, for which I think there are a cluster of reasons, including that a whole lot of union members were also Walker supporters and were not active in their union to begin with, along with the unions not being prepared for this and thus being caught unawares.
Richman is certainly right that unions had better have a Plan B. And they do, although how fast its implementation will be remains unknown. But it’s not like they don’t all think they know what is about to happen to them. No one is sitting back and assuming Scalia won’t go along with his Republican colleagues.