Supreme Court justices at work, bashing unions

Supreme Court Justice Samuel Alito is pursuing a vendetta against organized labor. As the point man for all things anti-union in the court's jurisprudence, Alito next will target teachers' unions in California. If he can persuade Justice Antonin Scalia to join the cabal along with Chief Justice John Roberts and Justices Anthony Kennedy and Clarence Thomas, he can play the constitutional trump card against compulsory union dues in the public sector.

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Alito galloped down this road in Knox v. Service Employees International Union, Local 1000 and Harris v. Quinn. His strategy in those cases was to charge headlong off the reservation, throwing precedent to the wind, then recovering briefly to reach a narrow holding acceptable to his cronies. This time, Alito may take the posse along with him for the ride.

The plaintiffs in the teachers' case, Friedrichs v. California Teachers Association, argue that public-sector unions are by nature politicized entities, and that compulsory payment of any dues in states that allow union security is a violation of the objectors' constitutional rights. The controlling legal rule dates back to the Abood v. Detroit Board of Education decision in 1977 that upheld the right of a union to collect an agency fee from non-members for collective bargaining activities if the contract provided for union security.

The political dimension of public unions is hardly a new idea. In 1969, two prominent academics published a study in the Yale Law Journal pointing out that the social costs of public sector bargaining "are on the whole political." Despite that, public-sector unionization escalated rapidly in the 1970s and was widely accepted by government entities, including the payment of mandatory dues in many instances.

Abood remains the law despite Alito's efforts to undermine it in the two earlier cases. In Knox, Alito got enough analytical bite to take a chunk out of unions' capacity for collecting dues by holding that agency fee payers did not have to opt out of paying full dues; instead, unions could only collect the total amount of dues if employees opted in.

How will Friedrichs turn out? Some commentators argue that Scalia will be the deciding vote, and because he upheld compulsory dues payments in the 1991 decision in Lehnert v. Ferris Faculty Association, he will do so again. What Scalia actually said in his concurring opinion in Lehnert is that for a union to collect mandatory dues, those dues must be directed toward demonstrated collective bargaining costs. Scalia wrote that "a union cannot constitutionally charge nonmembers for any expenses except those incurred for the conduct of activities in which the union owes a duty of fair representation to the nonmembers being charged."

Putting together the best thinking of Alito and Scalia, the result in Friedrichs will be that unless a worker has opted into the full payment of dues, the union can compel payments only of amounts that are proven by the union to be used exclusively for collective bargaining activities. Those two elements of opting into dues rather than out, and the burden of proof placed on unions to sort out all non-political aspects of their organizations, will further weaken union power and constitutionally convert all public-sector union laws into quasi-right to work jurisdictions.

The adverse costs of weakening labor solidarity through right-to-work laws are convincingly documented. Roland Zullo, a staff member of the University of Michigan Institute of Labor and Industrial Relations, was quoted in a recent news article that the impact of right-to-work legislation in his state has been to degrade union membership: "Unions are weaker because of the law, and some close down and/or new organizing stalls, and former members of unions choose to become free-riders — i.e., are covered but are not dues-payers." A large body of research dealing with the private sector confirms that right-to-work states have lower density, along with lower wages, more regressive tax schemes and lower opportunities for citizens to improve their economic situation.

Dissenting justices in the Friedrichs case will skewer the scabrous constitutional doctrine Alito has contrived to destroy unions. In the long run, though, labor's only hope is that Scalia ambles off to the retirement community to pontificate about the good old days in the duck blind with former Vice President Dick Cheney. So long as Alito has four reliable comrades to back his ramshackle jurisprudence, unions will suffer the consequences, and workers along with them.

Hogler is professor of labor law, labor relations and human resource management at Colorado State University.