Civil and Human Rights

Not all employers hate unions. These are trying to save them.

Public sector unions, in trouble at the Supreme Court, gets a little help from governments.


By Lydia DePillis 


Unions are supposed to be a pain for employers. Especially strong, well-funded ones that are able to thwart their plans for change. Bosses should root for anything that might undermine the unions’ ability to collect dues, which they use to negotiate over wages and benefits … right?


Well, not according to a host of government entities that have come to the defense of public sector unions at a moment when they could be wounded by a Supreme Court ruling on whether they’re allowed to collect dues from non-members. Twenty-two states (including Maryland and Virginia) and the District of Columbia, along with 14 school districts, 27 cities and counties, 48 Republican state legislators, New York City, and the federal government all filed briefs before the deadline today on behalf of the union being sued by teachers who say they shouldn’t be forced to pay dues at all.


Although nobody can be forced to join a union, about half the states now allow unions to charge non-members “agency fees” or “fair share fees” for the cost of bargaining their contracts; workers can opt out of all costs associated with political activity. The plaintiffs — represented by the Center for Individual Rights, a non-profit that promotes limited government through litigation — say that because their employer is the government, all the union’s activities are inherently political, and so being required to contribute is a violation of their freedom of speech.


Reply briefs in Friedrichs vs. the California Teachers Association are due next month, and the Court will hear oral arguments in January. If the plaintiffs win, the public sector would effectively become right-to-work nationwide. That tends to have a devastating effect on unions, since workers can enjoy the benefits of representation without paying anything to support it.


But unions aren’t the only ones that benefit from a healthy budget. The public does too, according to many of the governments that work with them.


Take the 14 school districts, the largest of which is Montgomery County, Md. In its brief, it says teachers unions have helped fund innovative solutions to school management problems, and that agency fees are essential to creating stability in the labor-management relationship.


“Without agency fee arrangements, unions have an incentive to take hardline positions and pick battles to constantly prove their mettle to their members,” the brief reads. “In these circumstances, unions face greater pressure to respond to the loudest, most strident voices within their membership, even if those voices do not represent the long-term interests of the membership, the school, or the community as a whole.”


Or take the states’ brief on behalf of the unions, authored by New York Attorney General Eric Schneiderman. It points out that many states adopted their collective bargaining laws in order to put a stop to crippling strikes, and argues that unions need healthy funding levels in order to hire qualified staff who can handle such negotiations. Unions also help point out inefficiencies in public management, since they ensure that workers will also benefit when a government makes money-saving changes that they recommend.


“Without fair share, the strong unions necessary to make these efficiencies work are going to go away,” says Anisha Dasgupta, deputy solicitor general for New York State.


There’s another common interest shared by unions and liberal governments that they’re not mentioning: They often both advocate for greater funding for public services, and unions help support Democratic political campaigns. Republicans more often find themselves at odds with public sector unions, both in elections and in budget battles where politicians are trying to shrink the size of government.


Then there are the Republican state legislators who sing the praises of federalism, making the point that the Supreme Court shouldn’t be telling states how to manage their own labor relations. “What the challengers in Friedrichs are trying to do is constitutionalize a single answer for the entire country,” says Elizabeth Wydra, chief counsel for the Constitutional Accountability Center, which wrote the brief. “However you feel about agency shop arrangements, it’s something the law currently leaves to the states, and the Supreme Court shouldn’t change that.”


Of course, there are some governments on the other side as well, including 18 states. (In some cases, the elected leadership is split — the governors of Illinois and New Mexico weighed in against the unions, while those states’ attorneys general came to labor’s defense.) They argue that collective bargaining in the public sector impacts all kinds of policy priorities, and therefore should qualify as political speech. When the state requires employees to contribute to unions, that speech is “coerced.”


“Like lobbyists, public-sector unions obtain binding agreements from the government that have enormous public impact— all without the natural counterweight of a financial market that exists in the private sector,” the states’ brief reads. “In the public sector, it is taxpayers, not business owners and consumers, who foot the bill—and the bill is often steep.” Moreover, the briefs filed for the plaintiffs argue that teachers unions can sometimes object to the educational measures politicians are seeking to implement, which is why the case has become a flashpoint in the larger battle over education reform.


But there are certainly a lot of governments that seem to like having strong unions around — or at least the freedom to choose the right to run their own labor relations, rather than having the nation’s highest court do it for them.

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