Chief Justice Roberts is Missing Something Important About Collective Bargaining

Andrew Strom

Andrew Strom is an Associate General Counsel of Service Employees International Union, Local 32BJ in New York, NY.

At the Friedrichs oral argument, Edward Dumont, the lawyer representing the State of California tried to make the point that collective bargaining for public employees often involves mundane workplace issues rather than major public policy issues.  Chief Justice Roberts pressed Dumont to give examples of issues that do not present public policy questions.  When Dumont suggested mileage reimbursement rates, Roberts pounced on him to make the point that “It’s all money….  If you give more mileage expenses, that costs more money.  And the amount of money that’s going to be allocated to public education as opposed to public housing, welfare benefits, that’s always a public policy issue.”

What the Chief Justice is missing is that collective bargaining serves two separate purposes for workers.  On the one hand, by joining together, workers can increase their bargaining power and gain a larger piece of the pie than they would if they each bargained individually.  But, particularly for public employees, where budgets are generally set by legislatures, bargaining allows workers to have a say in how to divide their share of the pie.  And, while setting the size of the public school budget may be a public policy issue, a school district’s decision to devote a tiny fraction of that budget to mileage reimbursement rather than more paid leave is hardly a matter of public concern.  Even where a school district has a finite amount of money to spend on compensation for teachers, the process of collective bargaining is valuable for workers because it gives them a voice regarding how to spend those dollars.  In the absence of collective bargaining, administrators would unilaterally decide whether to put more money into wages than benefits, or whether to add more paid leave even if that meant less money for health insurance.

The San Luis Obispo County collective bargaining agreement, which is attached to Friedrichs’ Complaint, illustrates some of the ways that collective bargaining gives workers a say in personnel matters that would otherwise be left to the discretion of the school district.  The collective bargaining agreement includes an agreement on the health insurance provider, and it also directs some of the health insurance money into dental and vision benefits.  The agreement provides for reduced work schedules and job shares for teachers who want to work less than full-time.  It addresses which duties can be assigned to teachers after regular school hours.  The agreement ensures that all teachers will receive notification of vacant positions.  In addition, it allows teachers to use sick leave to care for immediate family members.  The agreement includes additional provisions regarding leaves, including personal necessity leave, bereavement leave, professional growth leave, and extended unpaid leave for reasons of poor health.  These are issues that every employer must address.  If workers have a union, they have a voice in setting these policies.  If not, management sets them unilaterally.

In cases where public employees have sued their employers, the Supreme Court has been reluctant to find constitutional violations, expressing concern that it does not want to “constitutionalize the employee grievance.”  Thus, the Court has found that an assistant district attorney who voiced concerns about transfer policies in her office did not raise a matter of public concern.  Likewise, the Court found no First Amendment violation where a jury determined that a town retaliated against a police chief for filing a grievance.  In light of this precedent establishing that employee grievances do not merit First Amendment protection, it is not clear how the Court will now find that every issue covered in a public sector collective bargaining agreement is a matter of public concern.

Unions bring an element of democracy into the workplace.  Instead of fiats handed down by management, collective bargaining allows workers to have a say regarding their terms and conditions of employment.  It would be too bad if, in the name of defending freedom of speech, the Supreme Court issues a ruling that undermines this valuable mechanism that gives workers a voice in governing their workplace.

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