The Building Tradesman Newspaper

Friday, February 26, 2016

Scalia's death thwarts 'conservative legal attack' on public sector unions

By The Building Tradesman

WASHINGTON D.C. - Just when it looked like the Supreme Court was set to allow right-to-work for virtually all U.S. public sector workers, Supreme Court Justice Anthony Scalia died.

The Feb. 13 death of the conservative justice tips the High Court into an even 4-4 conservative-liberal balance, and it could remain that way for more than a year if the Republican-led Senate refuses to seat President Obama's replacement justice. For the nation's 20.5 million public sector labor union members, that 4-4 deadlock on the Supreme Court likely nullifies any chance that right-to-work will be imposed on them any time soon.

Based on oral arguments for the case heard last year, a 5-4 majority of the Supreme Court seemed ready to agree with a group of California teachers in Friedrichs vs. California Teachers Association, who claimed that their free speech was violated with the requirement that they pay union dues - even if those dues payments only go toward the cost of collective bargaining. The anticipated ruling would have allowed free riders in the public sector workforce across the nation to enjoy the benefits of union membership, without having to pay union dues - which is the essence of a right-to-work law.

The anticipated Supreme Court ruling would have overturned a 1977 precedent which allows today's interpretation of U.S. labor law, established by the High Court's Abood v. Detroit Board of Education decision.

Following are some reactions to the new lease on life given to public sector unions:

The Washington Post: "The court’s conservatives — Scalia included — appeared ready to junk a 40-year-old precedent that allows unions to collect an “agency fee” from nonmembers to support collective-bargaining activities for members and nonmembers alike.

But the U.S. Court of Appeals for the 9th Circuit, citing that precedent, had ruled for the union. And with the Supreme Court’s liberals seemingly united in upholding the precedent, a 4-to-4 vote would mean the union victory would stand."

The American Prospect: "It's nearly impossible to overstate what conservative Supreme Court Justice Antonin Scalia’s death over the weekend means for the labor movement. The loss of a conservative majority in the high court thwarts a sophisticated, multi-pronged conservative legal attack on unions.

"The loss of a conservative majority also kills a broader anti-union strategy that saw attacking union dues merely as a first step. Friedrichs came in the wake of Harris v. Quinn, which ruled that unions couldn’t collect 'agency' fees from home-care workers. Conservatives’ next legal point of attack was union membership."

In These Times, Moshe Marvit: "Labor was scrambling to figure out how best to run a union in a post-Friedrichs world. Meanwhile, conservatives already had a plan in the works to expand what they saw as a certain win.

"Last week, in a little-noticed case called D’Agostino v. Baker, the National Right to Work Legal Defense Foundation lost in the First Circuit in their attempt to argue that the First Amendment does not allow exclusive representation of home healthcare workers. This case sought to expand the Harris holding by arguing that the First Amendment prohibits home healthcare unions not only from collecting fees from workers who don’t want to pay, but also from bargaining on behalf of any worker who doesn't opt to be a member.

"Former Supreme Court Justice David Souter wrote the decision for the First Circuit in D’Agnostino, relying heavily on Abood and its progeny. If history is any indication, National Right to Work was planning on appealing this case to the Supreme Court. The case provided a glimpse of what the likely post-Friedrichs plan of attack would have been: After you win on the dues front, go after membership."

The American Prospect, again: "A question that looms large over all of these developments is how labor unions will respond. So far they have refrained from comment, likely due to a case of strategic whiplash. In preparation for an unfavorable ruling, public-sector unions have already recalibrated their strategies to focus on re-engaging the rank-and-file and trying to convince non-members to join up. One of the upsides of Friedrichs was that it actually served as a sobering wake-up call for unions. It would be unwise for leadership to see this fortunate break as an opportunity to revert to old habits."