On Jan. 11, the U.S. Supreme Court heard Friedrichs v. California Teachers Association. The case concerns assessment of union dues but holds broad implications for unions and the growth of economic inequality in America.
In Friedrichs, several California teachers seek to invalidate the “agency shop,” an arrangement authorized in the 1977 case Abood v. Detroit Board of Education where all employees represented by a union, including those choosing not to join the union, must pay for representation. This appeal resulted from Justice Samuel Alito’s 2012 decision in Knox v. SEIU, Local 1000, where he invited litigants to argue that Abood should be overturned. Thereafter, the Friedrich plaintiffs, represented by conservative lawyers funded by Koch brothers’ affiliates, sought an expedited appeal to the U.S. Supreme Court.
For almost 40 years, the court’s unanimous decision in Abood has carefully balanced a union’s interest and required representation of all members with individual member’s right to political expression. Abood allows an objecting member to veto the collection of fees that go to political candidates while it preserves the union’s right to finance the costs of representation from all those it represents.
Overturning Abood will unquestionably hurt unions, which is exactly what the Koch brothers and their ilk want. If that occurs, however, public sector unions will still remain. However, while an employee may now opt out of political advocacy fees by checking off the relevant form, after Friedrichs is decided, unions may be required to specifically ask each organized employee to say “yes” to the use of dues for political advocacy and for collective bargaining representation. In Hawaii, that means contacting over 61,000 organized public employees.
Placing the burden on unions to obtain the consent of each and every employee, rather than having the individual express non-consent on a form, is an onerous shift in responsibility that will predictably lead to more employees opting out of paying fees and imposing significant additional administrative costs on unions.
I am informed that supporters who want Abood overturned are already contacting union members to urge them to say “no” when their union contacts them to continue agency shop arrangements. Their goal is to starve the unions of resources necessary to negotiate contracts and represent all employees.
There is a historical relationship between the extent of union organizing and the degree of economic inequality. Economists Thomas Piketty and Emmanuel Saez and the Census Bureau have shown that as the national percentage of union membership rises, the percentage of wealth held by those with the highest 10 percent of income declines. Conversely, as union membership declines the proportion of wealth owned by the wealthiest 10 percent increases. For example, when the unionized workforce declined to 20.5 percent in 1984, 16.1 percent in 1994 and 11.2 percent in 2013, the proportion of wealth owned by the upper 10 percent increased from 33.9 percent to 39.6 percent and 47 percent, respectively.
At a time of growing economic inequality in America, workers and middle-class families are struggling to close the gap, not to fuel its growth by weakening unions. States with vibrant unions, such as Hawaii, have higher wages and benefits than states that do not.
Finally, if the Supreme Court overturns Abood, it continues its ideological support for corporations over organizations, like unions, that represent individuals. The line of cases, such as Lilly Ledbetter, Citizens United and Hobby Lobby represent judicial activism by this court, usually in split 5-4 decisions, tipping the scales in favor of corporate interest and abandoning any semblance of balance.
The Friedrichs case is another opportunity for the court to continue this disastrous trend. Let us hope, instead, the court comes to the right result: Uphold Abood.