Author: Robert I. Grundfest

The end result is in reach for those conservatives who have worked so hard to destroy public sector unions and along with them, the rest of the middle class.

The Supreme Court will hear arguments on Monday in the case of Friedrichs v. California Teachers Association about the legality of public unions charging people who don’t want to join them an agency fee that amounts to almost a full dues payment. The teachers who brought the case are arguing that everything public sector unions do is political since they use public taxpayer money for their contracts. And since, in their view, everything is political, the plaintiffs say that their first amendment rights are being violated because they’re being forced to support an entity, the union, that they don’t agree with.

The controlling opinion on this issue is a 1977 decision in the Abood case in Detroit. Back when the Supreme Court had conservatives who saw the value of unions, the court said that agency fees were constitutional. From the article:

In 1977’s Abood v. Detroit Board of Education, which established the constitutional principle at stake in Friedrichs, Justice Potter Stewart acknowledged that compelling someone to support their bargaining units may affect their First Amendment rights. He listed several instances of employees disagreeing with the views of their union — on abortion, race relations, even unionism itself. But ultimately, Stewart acknowledged that “such interference” with a person’s views is “constitutionally justified” so as to allow “the important contribution of the union shop to the system of labor relations established by Congress.”

It seems almost quaint, the idea that the union movement is important. That’s what 30+ years of unrelenting opposition and hostility to worker’s rights and decent wages will do to a country.

What’s even more interesting and sad in a way, is the argument from the teachers (yes, teachers) who brought this case. Not everything a public union does is political. And any union or agency employee has the absolute right to speak out, to suggest ideas and to protest what they believe to be unfair actions that the union takes. Further, the union negotiates salary, benefits and working conditions for every employee, whether they are union members or not. If the fees were struck down, then many members would be benefiting from negotiations for free.

It gets even better. Harlan Elrich, one of the teachers in the case, wrote in a Wall Street Journal op-ed,  

“That the union would presume to push, allegedly on my behalf, for higher salaries at the expense of smaller class sizes and avoiding teacher layoffs is preposterous” 

He’s also quoted in the New York Times as saying,  

“I can negotiate for myself. I’m a good teacher, highly respected, and I can go anywhere.”

There are two terrifically dangerous assumptions at work here. The first is that we have a teacher who doesn’t want the union to ask for higher salaries for all teachers. Mr. Elrich might be doing fine financially, but many other teachers – including those in New Jersey who are taking home less pay every year because of increasingly burdensome health insurance payments – are not doing as well and are falling behind or struggling just to maintain a middle class life after going to college and starting their lives.

The second problem is his assumption that he, or any teacher, would be better off negotiating his own salary and benefits. In fact, Mr. Erlich is contradicting himself mightily by accusing the union of negotiating salaries beyond the means of the town to pay them, and maintaining that he can negotiate perhaps a better salary on his own, with the money coming from the same taxpayer pockets. And if he wants to seriously negotiate smaller class sizes and avoid teacher layoffs, then he should join the union and push for those things rather than try to freeload and then complain.

Having teachers becoming free agents is exactly what the corporate conservatives want because, like me, they understand that teachers are not really in a good position when it comes to negotiating for themselves. The reason? Because the public respect teachers for the job they do for their children, but they also think teachers get paid too much for a 10 month job. Mr. Ehrlich is likely in for a rude awakening if he wins and then goes to his Superintendent or Business Administrator and is offered less money because of thousands of new college graduates willing to take his job at, I’m guessing, about $30,000 dollars less.

It is incumbent upon all teacher’s unions to spend the rest of this school year explaining to their members why it’s important to stick together, and to remind them what teaching life was like before the association movement. Justices Alito, Scalia, Thomas and Roberts would surely love for people to forget salaries that required second jobs and administrative fiats that subverted the dignity and respect that teachers deserve.

All might not be lost at the Court because we never really know what the Justices are thinking (remember the two Affordable Care Act cases and marriage equality), but this one will be close and we don’t have Potter Stewart to fight for the value of unions. But we do have ourselves. I hope that’s enough.

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