After Friedrichs

Last week, the Supreme Court released its much-anticipated ruling in Friedrichs v. California TeachersAssociation. The question at issue was of critical importance to public sector unions: do agency feeagreements violate workers’ First Amendment rights? These agreements, which require all workers in abargaining unit to pay for the union to bargain collectively on their behalf, ensure that public sectorunions remain operational. So, a holding that they were unconstitutional would have hampered the abilityof unions to organize public sector workers.

Months of speculation about Friedrichs and the future of public sector unions fizzled out in a one-line percuriam opinion. The Court split 4-4, so the judgment of the Ninth Circuit stood, as did the Court’s 1977decision in Abood v. Detroit Board of Education (which said agency fee agreements were ok, with someexceptions).

Friedrichs marks the second time in the past three years that a major labor law case has arrived at theCourt looking like it might blow up the labor movement, but has turned out to be a dud. Back in 2013,commentators were calling Unite Here Local 355 v. Mulhall “the most significant labor law case in ageneration.” But, in a one-line opinion, the Court in Mulhall concluded that cert had been grantedimprovidently and tossed the case.

Neither opinion has much to say about the contemporary moment in labor law (or anything else, for thatmatter). But the speculation about and commentary surrounding Friedrichs – like Mulhall before it –provide valuable windows into the U.S. labor movement and its legal regulation.

To commentators at the time, Mulhall invited inquiry into the existence of private rights of action forworkers to challenge union conduct and attendant standing challenges. As I’ve argued elsewhere, thecase also raised the possible relevance of criminal law to contemporary organizing strategies.

The recent coverage of Friedrichs (like the coverage of Mulhall) highlights the precarious nature of laborunions and labor law. Both cases were near misses that showed the power of the Court in shaping thelabor movement. Friedrichs came down to one vote. And, were it not for Justice Scalia’s passing, mostcommentators believe that the Court would have overruled Abood and effectively outlawed agency-feeagreements for public sector unions.

But, I think there’s something else at work in the commentary surrounding Friedrichs – the peculiar placeof exclusivity in the contemporary labor movement. While many commentatorsdistinguishbetween“union workers” and “non-union workers,” the law doesn’t. Once a majority of workers in a bargainingunit vote to unionize, the union must represent all the workers in the unit. That means even workers whovoted against and actively opposed unionization benefit from any concessions obtained during collectivebargaining.

Agency-fee agreements provide a means of ensuring that workers benefiting from union activity pay theirfair share. This “free rider” rationale justified the Court’s holding in Abood and has stood at the heart ofunion arguments in support of agency-fee agreements. The government taxes those who voted for theparty in power and those who didn’t alike, because the government (at least in theory) provides servicesto both groups. The same rationale applies in the union context because of the exclusivity requirement.

Opposition to Abood might be justified as a part of a broader critique of exclusivity – perhaps the unionshould represent only those teachers who voted for it, and only those teachers should be required to payunion dues. Indeed, this logic has driven certain arguments for “minority” or “members only” unions. But, it’s critical to acknowledge that this logic would also require a departure from the rule of exclusivity.

As I have argued elsewhere, rejecting agency-fee agreements while preserving the exclusivityrequirement rests on flawed assumptions about human behavior (i.e., that people would choose to pay forbenefits, even if they could get those benefits for free).

The distinction that popular commentators drew between union and non-union workers hints at thepossibility of broader misconceptions about exclusivity. (As an empirical matter, do most workers facedwith agency-fee agreements know that the union is legally obligated to bargain on their behalf?). But italso raises the question of how much union opposition flows from critiques of exclusivity. Contemporaryrhetoric about unions collecting dues from non-union workers, or worker opposition to unionization in thefirst place clearly implicate critiques of exclusivity. (Think of the framing of “right to work” laws asallowing workers a “right” to be free from union interference).

Certainly, opposition to unionization has a long and bloody history that predates the NLRA. And, therhetorical framing or advocacy strategy that underpinned Friedrichs might be premised on otherideological objections to unionization or to unions as political actors. But, taken at their word, thesecritiques are critiques of exclusivity, and don’t actually have anything to say about unionization. Perhapsthat’s why there has been somelibertarian support for non-exclusive forms of worker organizing. Whilethere may be good reasons to worry about the exclusivity critique as misrepresenting power dynamics inthe labor market, it’s worth considering how exclusivity underpins the system of agency fees that remainsalive, but gasping for breath after Friedrichs.

Others have madethecase for abandoning exclusivity (or at least exploring the potential benefits of non-exclusive representation); doing so is not my goal here. Rather, given the close call in Friedrichs and thepossibility that Justice Scalia’s replacement may also oppose agency-fee agreements, it’s worth thinkingahead to what labor law might look like after Abood. It’s hard to imagine how unions would deal with thefree-rider problem in an exclusive representation scheme if they couldn’t enter agency-fee agreements. So, maybe it’s time to start imagining how worker organizing and workplace democracy might take shapein a world without the exclusive representation requirement.