A special Valentine for public-sector workers

February 17, 2016

Joe Richard explains why public-sector unionists can heave a sigh of relief--for now.

MILLIONS OF teachers, firefighters and every other kind of public-sector worker got an early Valentine's Day gift with the news that Supreme Court Justice Antonin Scalia had been found dead the day before.

Though we're told to not speak ill of the dead, it's difficult for those involved in the public-sector labor movement--as well as millions of immigrants, women, people of color and many, many others--to not feel some sense of relief considering Scalia's record on the Court and his lifelong support for far-right policies that found their way into U.S. law and public policy thanks to him.

The current term of the Supreme Court was set to rule on a bevy of cases, many of which would have far-reaching consequences for women's reproductive rights, immigration and the labor movement. Without Scalia, who was nominated to become a justice by Ronald Reagan, the balance of the Court is now generally believed to be split in an even 4-4 tie between liberals and conservatives.

For the labor movement, the main case was the infamous Friedrichs v. California Teachers Association. Conservatives on the Court, including Scalia, were clearly gearing up to use this case to strip public-sector unions of their legal ability to charge representation or "agency" fees to non-members in their represented bargaining units.

Union defenders rally outside the Supreme Court during arguments in the Friedrichs case
Union defenders rally outside the Supreme Court during arguments in the Friedrichs case

Many public-sector unions have been reliant for years on a steady stream of "agency" fees to fund themselves, rather than an empowered and active rank-and-file membership. A negative ruling in the case would have been disruptive to the normal operations of even the strongest public-sector unions, and hugely destructive to those with the largest number of non-members in the bargaining unit.

The labor movement responded slowly to the case over the last year or so, but in the last six weeks, the urgency turned to panic after the Supreme Court heard oral arguments in January. Those arguments made it clear that a majority of justices would rule against the labor movement, with Scalia leading the way for at least a 5-4 vote.

Many unions have been scrambling to prepare for a negative ruling by attempting to recruit non-members in the workplaces they represent and preparing to trim their sails when faced with the loss of fees from non-members they couldn't recruit. Now it looks like the unions caught a lucky break.

THERE ARE a few possible outcomes to the case after Scalia's death, all of which are fairly positive for the labor movement--as long as the speculation is correct and the remaining justices are divided 4-4 on Friedrichs.

If the justices decide to move ahead with a ruling and issue a 4-4 split decision, the ruling of the lower court would stand, and the current law, based on the 1977 Abood v. Detroit Board of Education, which requires non-members to be assessed fees by the union representing their bargaining unit, would remain in effect. The impact would be as if the Supreme Court had never heard the case at all.

Alternately, the current Court could decide to reargue the case after another justice has been confirmed. That would at least buy some time for public-sector unions to prepare for a possible negative ruling.

Then the question becomes who the new justice is. Given the Democratic Party's appreciation for the massive amounts of donations it gets from public-sector unions, any nomination by Barack Obama or some future Democrat would probably not rule against the labor movement, at least on Friedrichs. But "probably" is the operative word--there's no guarantee given the Democrats' rotten record on honoring its promises to unions.

Finally, the Court could decide to resolve the case in a procedural way and punt on the main question. This would also uphold the previous Abood decision, in effect handing the labor movement a win. Even if Scalia had already written the opinion for a conservative-majority decision in the Friedrichs case, that decision would not apply. According to SCOTUSblog: "Votes that the Justice cast in cases that have not been publicly decided are void."

Indeed, it appears that Scalia, with his timely death, performed an admirable service for the labor movement. But it's actually a sad commentary on the state of most public-sector unions that a chance occurrence like this is what may have stopped Friedrichs.

The alternative to labor's lackluster effort is for the thousands and thousands of rank-and-file members to revive their own unions and turn them into dynamic, fighting organizations that people are convinced to join--and where the number of non-members would be so low that any future Supreme Court ruling to overturn agency fees would have less impact.

This reprieve could give unions a precious window of time to begin transforming their organizations by developing an army of volunteer members, stewards and activists to recruit non-members and reinvigorate the internal life of their unions.

The same well-funded, anti-union forces soliciting test cases to send to the Supreme Court on this and other issues--like the Koch Brothers, the National Right to Work Foundation and the American Legislative Exchange Council--aren't going away any time soon. And there are a number of other test cases headed to the Supreme Court that could also negatively impact public- and private-sector unions across the U.S.

After Scalia's death, the wider balance of forces in U.S. society remains unchanged: The labor movement and other working-class organizations are on the defensive, as they have been since the beginning of Corporate America's offensive some 40 years ago. Employers in both the public and private sectors are intent on limiting or breaking the power of organized labor.

There will be intense pressure in the coming eight and a half months to line up to vote for the Democratic presidential candidate in the upcoming elections. But a real strategy for the labor movement involves nothing less than the hard work of knitting together a vibrant labor left, reigniting worker activism within unions, organizing the unorganized and waging vigorous campaigns and strikes at the workplace to turn the tide against employers.

So long as the labor movement remains on the retreat, it will continue to be vulnerable to legislative and judicial attacks, especially at the state level. As the last eight years demonstrate, a Democratic president won't change that. We need a different direction for unions.

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