Will the Supreme Court deal a blow to public-sector unions?

The Supreme Court will hear oral arguments on Monday in Friedrichs v. the California Teachers Association, a case that has the potential to dramatically change the future of organized labor in the United States.

This case is the result of years of effort by 10 California teachers led by Rebecca Friedrichs, a longtime elementary school teacher and a former union member. They are leading the charge in a case that challenges state laws that boost union power.

“My union has become what it used to fight,” said Ms. Friedrichs, “It is powerful, it is entrenched, and it is not listening to its members.”

Twenty three states, including California, require public employees to fund their unions, either through membership dues or agency fees. Agency fees are paid by non-members who benefit from union activities such as salary and benefit negotiation. By requiring non-union workers to pay agency fees, states attempt to eliminate free-ridership, which occurs when non-members benefit from union services without paying for them.

In an attempt to preserve the free speech of non-members, agency fees, unlike membership fees, cannot be used for political lobbying. But Friedrich argues that, “Compelling dues to support a union agenda at the bargaining table has the same First Amendment implications as compelling fees that support a patently ideological agenda.”

If the Court rules in favor of Friedrichs and her fellow teachers, it will overturn a precedent set in 1977 in Abood v. the Detroit Board of Education. In Abood, the Court unanimously ruled that public sector unions could charge non-members for union services by compelling all public workers in a given industry to pay agency fees.

The past century has seen the fortunes of the labor movement rise and fall. Initially feared by some for their socialist leanings at the turn of the 20th century, early labor unions such as the Knights of Labor and the American Federation of Labor fought for fair pay and working conditions with strikes and collective bargaining. In 1935, the labor movement scored a great victory with the passage of the Wagner Act, which created the National Labor Relations Board and guaranteed the right of private sector workers to unionize.

Despite rising union membership in the 1930s and 40s, in 1947, the Taft-Hartley Act limited union power by creating right-to-work states, in which workers could not be compelled to join their industry’s union. In 1981, President Reagan, himself a former union member, fired every member of the striking Professional Air Traffic Controllers Organization (PATCO) who refused to return to work.

Recent high court rulings have chiseled away further at union power. In a 2012 ruling in Knox v. SEIU, the court narrowly ruled that union members must be able to opt in to dues increases rather than having to choose to opt out.

In 2014, the Court struck another blow in Harris v. Quinn when it held that home health care workers were not public sector employees and therefore could not be forced to pay agency fees. Conservative justice Samuel Alito wrote the majority opinion, in which he specifically decried the Abood decision's “questionable foundations.”

Union membership has declined significantly since the 1960s. Only 11.1 percent of all workers today are union members. Organized labor has not only faced legal setbacks, but has also fallen vulnerable to market trends. Manufacturing positions, for example, which were once heavily unionized, are moving overseas.

According to journalist Anya Kamenetz, the future of the workforce will reflect the changing nature of labor. Many of today’s workers do not work in traditional manufacturing or trade settings, but are instead involved in technology or freelance work. Workers also spend less time at each job, with average tenures lasting only 4.4. years.

With workers spending less time in a given position or even in physical offices, Kamenetz writes, “Crowdfunded workers' networks could perform all of the [functions of a union] and more to serve as the union of the future.”  

If Friedrichs and her fellow teachers win, what will it mean for unions? Some, like California Attorney General Kamala Harris, say that such a decision would be a death blow for unions. Others, like Friedrichs herself, say that when agency fees are no longer compulsory, unions will be forced to respond better to worker needs. When membership becomes an active choice, she says, unions will be more vital. “I can live with that,” she says.