Friedrichs Versus Wisconsin’s Act 10: A Brief Primer

This week the Supreme Court heard oral arguments in the Friedrichs case, and unions and their supporters are bracing for the worst.  The legal case in support of the Abood precedent has been persuasively defended by Benjamin Sachs, Katherine Fisk, and Andrew Strom on this blog.  Alas, if the oral arguments provide a guide, a majority of the Court disagrees.  What remains subject to much debate is the potential impact of the decision on public sector memberships and finances.

Many observers have pointed to Wisconsin in the years following the passage of Act 10 for clues as to what to expect for unions across the country should the Court overturn Abood (see here, here, and here for examples).  Since Act 10 took effect in the Badger State during the Summer of 2011, public sector unions have hemorrhaged members, declining by nearly 40% in three years.  Is Wisconsin the harbinger of the national scene if the court rules in favor of the plaintiffs?

Not necessarily.  Wisconsin Governor Scott Walker’s signature effort to cripple public sector unions represents Friedrichs on steroids – a piece of legislation that not only takes away unions’ ability to collect fair share fees but also restricts most government unions – all except those that represent police officers and firefighters – from doing many core union functions.  For example, the act:

  • Bans public sector unions from negotiating over benefits or working conditions.
  • Bans public sector unions from negotiating pay increases that go beyond cost-of-living adjustments.
  • Increases employee healthcare and pension costs, effectively lowering government workers’ total compensation.
  • Requires public sector unions that engage in bargaining to win an election every year.  And “winning” means not simply gaining the votes of a majority of election participants, but of a majority of all workers in a bargaining unit.  (Imagine a 51-worker unit where the workers vote 25-0 in favor of the union.  Given the nonparticipation rate, the union would lose under this stipulation).

In an excellent piece for the Guardian, Steven Greenhouse recently reported on these requirements and their consequences for public sector unions in Wisconsin.  And the picture has not been pretty.  Membership has plummeted, drying up union coffers, and the onerous election rules have led many locals to give up bargaining altogether, leading to further declines in union rolls and resources.

Yet what’s important to bear in mind is that none of the conditions listed above would apply to public sector unions nationwide should a majority of justices side with the Friedrichs plaintiffs.  The elimination of fair share fees means that unions will have to work hard at convincing their members that dues are the cost necessary to maintain a collective voice at the workplace.  But everything that comes with that union voice would remain untouched.  Not so in Wisconsin, where organizers face the herculean task of convincing workers to pay dues to an organization that cannot bargain on their behalf.  And Wisconsin organizers must do this when workers are already shouldering a larger financial burden for their health care and retirement packages, making the membership pitch all the more difficult.  Such is the brutal effectiveness of Walker’s law: convincing workers of the value of membership is nearly impossible when “membership” ceases to mean much.

What the outlawing of agency fees requires from unions is a concerted effort to actively maintain their membership bases.  As I’ve noted previously, many unions effectively do just this, and, other nations with unionization rates the envy of the American labor movement are, effectively, entirely “right-to-work.”  Thus eliminating agency fee collection is not a guarantee of a dramatically weakened labor movement.

Scholarship on the extent of “free-riding” in jurisdictions that bar agency fees is mixed.  Research by the economist William J. Moore suggests that “free-riding” is relatively rare, while more recent analyses suggest that, among teachers at least, it can be quite significant.  Some have pointed to Michigan for evidence of significant “free-riding,” and for an indication of what’s to come for public sector unions post-Friedrichs.  Michigan recently eliminated fair share fee collection, and experienced membership declines of 10% between 2013 and 2014.  But unions in neighboring Illinois and Ohio – states where the collection of agency fees is allowed – also lost ground (although not as much).  And in right-to-work Indiana, union membership actually increased.  What is very clear from the existing research is the enormous variation in “free-riding” rates in right-to-work jurisdictions.  This provides evidence that some unions do an effective job reaching out to workers, convincing them to pay dues, while others don’t.

The scrapping of the precedent set by Abood will certainly not help unions.  There is no sense in being Polyannish about the likely consequences of the Court’s decision this summer.  Many unions will be hurt, and all will have to divert resources away from ongoing campaigns to maintain dues collection. But it will prove devastating only if organized labor believes it will, and give up on the hard work of convincing government employees of the labor movement’s value.  That hard work is worthwhile regardless of whether the collection of fair share fees is allowed or not.

Here the scores of recent union-supported victories in raising minimum wages, passing paid sick leave legislation, and pressuring low-road employers such as Walmart to increase pay should prove vital.  These wins provide clear evidence of the labor movement’s value – and of the need to maintain membership rolls to sustain momentum on behalf of American workers.  In the weeks and months ahead, unions should trumpet these victories, taking Wisconsin’s state motto as their guide: “Forward!”