11 January 2016

Dark Days coming for American Unions?

The Supreme Court of the United States will hear a case today that has the possibility of having massive, far reaching implications, the possibility of overturning constitutional precedent, and essentially changing the way unions in the United States function. These are some pretty broad, sweeping claims, especially about something that most people won't even know is happening, and won't really be an issue until June/July, when these decisions come in. 

Fredrichs v. California Teachers Association will be heard by The Court today. The question of the case is simply complex. There are actually two questions being asked: 1) Can public employees be forced to pay union dues as a mandatory condition of employment? 2) Whether requiring individuals to opt out of dues is in violation of the First Amendment. Since this is a little more formal than most of my writing, I should give some sort of road-map of the discussion. Initially, I'll give a limited history on Abood v Detroit Board of Education, Knox v. SEIU, Harris v. Quinn and how those cases play a role in this case. I'll then give the framing of the case from the position of the Petitioner, and afterwards, I'll give the case from the framing of the respondent. And finally, I'll go on record and tell you how I think the case will go, so I can have concrete proof of my choices for all to see, while remembering this key piece of information: Predictions are free, and worth what they cost. 

To have a legitimate understanding of Fredrichs, it'll be necessary to get a little background on a few decisions that are integral to it's legal implications. The first is Abood v. Detroit Board of Education, 431 U.S. 209 (1977). Unions take dues from federal employees, which makes them members of the organization, whether they want to be or not. This also includes nonmember workers, people not actually represented by the union, but are beneficiaries of union actions (these people will be called free riders for the duration). Louis Abood, a school teacher, objected to the union itself and was against the unions endorsement of political candidates, so Abood sued in Michigan state court., claiming a 1st Amendment violation. The decision still has far reaching implications, as it's the engine most unions use to generate the necessary funding, and it still does (part of the reasoning behind the case now). SCOTUS determines in Abood that, consistent with decisions with the private sector with regard to collection of dues, but only for collective bargaining purposes, as opposed to political purposes. This distinction is at the heart of the conflict within the Abood decision. It's important to note that Fredrichs intent is the overturn of Abood, which is pretty rare in SCOTUS decisions, as limiting and expansion are way more consistent actions...After Abood, the question of explicit vs presumed consent with regard to union involvement was brought forth in Knox v. Service Employees International Union No. 10-112, 567 U.S. 310 (2012). The SEIU needed to collect "special fees" and did so from union and nonunion members with an opt-out system, one that presumes consent to an action unless the individual makes an affirmative action to remove themselves. Otherwise, the person is presumed to consent and no actions need to be taken to collect fees. The Court, on a 5-4 decision, decided it was imperative to, in the case of special fees, to have the affirmative action- you have to actively want the fees taken, as opposed to having them taken from you and you have to act to have them not do so. This has the potential to be a devastating decision to the unions, but was severely limited in scope...this lead to Harris v. Quinn 573 U.S. This case seems like it's more in line with the questions in Fredrichs, as it has to do with the collection of union dues from nonunion members. The issues dealt with home health care workers, who are hired and fired individually, which was an important distinction noted by the justices when they made their decision that, in Harris, it was unconstitutional to collect dues from these nonunion workers. The warrant of the decision, once again, came back to collective bargaining. The Court determined, since the individuals are hired and fired on an individual basis, by the patients themselves, the discussion of collective bargaining for these nurses was irrelevant, as they would not be protected, as they were hired and fired from a different process...these three SCOTUS decisions provide a backdrop for the discussions in Fredrichs.

The Petitioners in the case are making two distinct, but important arguments. The first is that there is effectively no distinction between "collective bargaining" and "political speech" and that this false distinction is at the core of the conflict. The logic isn't hard to see- conversations about wages and benefits within the public sector, which is the area unions are allowed to use their fees, can definitely be seen as political speech, and at least, in the petitioners eyes, the core part of collective bargaining may be substantially more "political" than many core political issues (example: pension benefits being paid or cut is probably a bigger story than what state senator is endorsed and backed by the union). If the logic of Abood says it's unconstitutional to use union dues for "political purposes" then the petitioner, if they can prove there is a false distinction between political speech and collective bargaining. The petitioners also feel there is flawed logic in "free rider" rationale.

The logic of free rider rationale is that members who gain benefits from the union should pay dues, even if they're non members, as they are beneficiaries of the union actions for a couple of reasons. Initially, petitioners believe the the unions framing of what the union does and what they get out of the union is problematic. Unions, they claim, frame the issue of representation as an onerous burden placed on the union to represent all the members of the union, and it may be, the petitioner would say. However, it's also a base of incredible power, something the union has in spades: they're essentially a monopoly on access to the marketplace for negotiations between the employee and the employer- they have the power to speak exclusively for all employees AND prohibits the employer from going anywhere else and dealing with anyone else. And because of this, it means the cycle is always self-fulfilling, there will be dues which will allow representation which will increase wages which increase dues, etc. Secondly, their argument is that under the current agreement, unions are the representatives of the employee, whether they like it or not, which begets a certain amount of coercion- it's not really a "free" ride if you didn't ask for it or want it as much as a "forced" ride, and in this country, we're not forced to pay for things we didn't ask for. 

The second part of the petitioners claim is tied to the opt-in/opt-out option for union dues. As of now, when you get a job for the government, the union has the option to take dues from you outright (mandatory) or through an opt-out, presumed consent framing (this instance was an opt-out, which they also find problematic, for the reasons described in Knox above). The petitioner agrees with the logic advanced in Harris, indicating that, with regard to fees for unions, that members should choose to affirmatively engage with the union, as opposed to having their inaction the point of engagement.  They would argue that this means, without affirmative consent, the union gets to claim members as representative of views in collective bargaining and out (and remember, the initial claim is tied to there being no distinction between collective bargaining and political speech as they're one in the same). And because of this, the opt-out clause, specifically, does damage to the 1st Amendment rights of nonmembers who have to live with the implications of a union they're not members of with no voice in the matter. 

The Respondents are not without their positions on the matter, and feel they, too, have a strong case. They feel the premises of both components of the case are problematic. Initially, they feel there is a real distinction between political speech and collective bargaining conversations, and that the problem of the free rider is real. Their claim is that conversations determined during collective bargaining, things like wages and working conditions, are things that benefit all employees, regardless of their participation in the union, and that, in a world where people would still get the benefits of the union without paying for it through these union dues, that the union would have a couple of substantial problems: 1) they would have substantially less funds with which to operate and would crush the unions ability to do its job, and 2) would give incentive for people to NOT be in the union (human nature- you can get the same item, one for free, which do you take?) and would eventually be the end of the union as we know it. 

The respondent would also disagree with the logic of opt in vs opt out discussion, indicating that, because of the reasons above, that members should have an affirmative obligation for involvement, and that if they choose, they have the chance to opt-out of such a system- if you think the union isn't saying what you want them to say, you can sign some forms and no longer be obligated to pay. This means that, even if the petitioner was right and the union, through collective bargaining took stances on positions the member was dead set against, they could go to an office, sign a form and at that point, no longer be obligated to paying this.

Now that you've gotten a little something something on this, what do I think is going to happen? I'll start with what I think should happen- I'm not a legal scholar, so bear with me...historically, SCOTUS tries not to 1) overturn decisions, and 2) change law that would have overarching effects on society- only a handful of decisions have actually been overturned and SCOTUS doesn't generally like to set the world on fire with a decision that requires wholesale changes in the way societal structure functions. Overturning Abood, which is what Fredrichs wants to do, would set the union contracts world on it's head, as literally thousands of labor agreements are tied to the language, law and logic of Abood. And it's pretty important to have unions, in my opinion. Sometimes you and your administration may not see eye to eye, and you'll find yourself out there with nothing behind you, no support system to help you get what you deserve. This is the function of the union. And because in a capitalist system, I'll never believe the employer will do what is in the best interest of the employee, in terms of pay, conditions, hours, etc without some impetus to do so. Unions are that impetus. 

Now, what's actually going to happen? I think SCOTUS will affirm Fredrichs, which effectively overturns Abood. I think the majority, The Conservative Four and Justice Kennedy will decide there is no distinction between political speech and collective bargaining, that there are many staunchly held views by individuals that unions, in their collective bargaining agreements, take positions in direct opposition to those views, and that union dues, in effect, are funding speech they don't agree with and simultaneously squashing speech they would, but for the union. I think the discussion of the opt-in/opt-out will largely be irrelevant, as the court will have the opportunity to do something I think they want to do (the language in Harris indicates they felt Abood was problematic but that the question of the case made addressing Abood with an overturn was probably a constitutional stretch). The question I have is with that fat Italian racist Scalia, who is on record with having problems with the problem of the free rider with regard to unions and nonmember dues, but once I remember that 1) he's Scalia and 2) he voted with the Conservative Four on Knox and Harris, it becomes apparent that, when I call Miss Cleo about the future of unions in America, she, after leaving me on hold for 4 hours at $4.99 a minute, tells me:

The Future Is Bleak.