Months after reaching a 4-4 tie in Friedrichs v. California Teachers Association, the Supreme Court has denied the petitioners’ request for a rehearing. The Court waited until its final conference of the Term to vote on the petition, after postponing its decision eight times since April. No opinion was included with the Court’s denial.
While today’s announcement effectively brings the case to a close, the questions presented by Friedrichs — (1) whether Abood v. Detroit Board of Education should be overruled and public-sector “fair share” arrangements invalidated under the First Amendment, and (2) whether it violates the First Amendment to require that public employees affirmatively opt out of subsidizing nonchargeable speech by public-sector unions — may be litigated again and brought back before a (presumably full) Court in the future.
In case you missed it, the Supreme Court has handed down a 4-4 affirmance of the lower court’s opinion in Friedrichs v. California Teachers Association. The Court’s 1977 opinion in Abood v. Detroit Board of Education thus remains good law, and public-sector unions may continue to collect agency fees from nonmembers.
When it comes to labor news in Illinois, most attention is on the Chicago Teachers Union and its likely strike in April. But HB 580, a labor bill pending in Illinois, merits attention as well, as it has ignited fierce debate in the state for over a year. Though the future of the bill is uncertain, it raises important questions about public sector unions that have little choice but to engage with partisan politics.
Current Law & Stalemate
HB 580 would create an additional method for concluding agreements between public sector unions in Illinois and the state government, creating the option of using binding arbitration instead of providing for exclusive use of the Illinois Labor Relations Board.
Currently, under the Illinois Public Labor Relations Act, public sector unions negotiate directly with the governor. If negotiations break down, either side may ask the Board to find that an impasse has been reached, triggering the union’s right to strike as well as the state’s right to lock out workers and shut down the government.
The state’s contract with the American Federation of State, County, and Municipal Employees (AFSCME) Council 31, the union that represents the majority of Illinois public employees, expired on June 30, 2015. Despite multiple bargaining sessions, AFSCME and Governor Bruce Rauner have yet to reach an agreement over a new contract. The central points of disagreement are the state’s demands to freeze wages for four years, raise the threshold for overtime from 37.5 to 40 hours a week, and increase employee contributions to health care plans. AFSCME wants higher wages and to keep the state’s proposed changes out of the new agreement.
As graduate students, adjunct faculty members, and other university community members increasingly seek to unionize, the experiences of University of California employees may give pause to those who are currently organizing at public colleges and universities. The Daily Californian notes that the state’s Public Employment Relations Board is currently experiencing a significant backlog that has prevented the agency from processing UC workers’ labor disputes in a timely fashion. Although PERB aims to process cases within 60 days of filing, it takes an average of at least 137 days to process even routine cases. “Underfunding has been a crucial problem (for PERB),” said the legal director of the union that represents lecturers and librarians. “When you have cutbacks in staff, it causes delays all down the line, because it takes longer for cases to be processed. They have more on their plate.” In fact, PERB has even kept one its five seats vacant, so as to use the funds that would have paid for that board member’s salary to pay for other costs. However, relief may be on the horizon: Governor Jerry Brown has proposed increasing PERB’s budget by $1 million for the 2016– 17 fiscal year.
Domestic workers are commonplace in Hong Kong — “one of the world’s richest cities” — but that doesn’t mean that they are treated fairly. In fact, according to a recent report by the human rights organization Justice Centre, “as many as 56,000 [of the roughly 336,000 migrant domestic workers in Hong Kong] may be in forced labor.” CNNMoney, which detailed some of the report’s findings, interviewed one worker who said “she was kicked, punched, fed rotten food and forced to work 20 hours a day for nearly a year.” The report notes that “[m]igrant domestic workers are uniquely vulnerable to forced labor, because the nature of their occupation can blur work-life boundaries and isolate them behind closed doors.” In a statement, the Hong Kong Security Bureau claimed that “local legislation provides a solid and proven framework to combat human trafficking.” But many migrant domestic workers “come [to Hong Kong] via agencies direct from their home countries — Indonesia, the Philippines and other Asian countries — and don’t meet their employer before signing a contract requiring them to live and work in their homes.” To make matters worse, “[b]y law, they’re only entitled to one day off a week.”
With yesterday’s news of Justice Scalia’s unexpected passing, the consensus seems to be that the Supreme Court will reach a split 4-4 decision in Friedrichs v. California Teachers Association. In such an occurrence, the Ninth Circuit’s decision below — which upheld California’s fair-share fee requirement pursuant to the principles announced in Abood v. Detroit Board of Education — would stand.
Although a 4-4 affirmation may be the most likely outcome, it is not the only plausible result. As some commentators have noted, the Court might decide to hold over Friedrichs (and potentially other deadlocked cases) for reargument next Term. Such a move would not be unprecedented. Although the Court has been notoriously tight-lipped about its reasons for ordering reargument, one reason seems to be where the Justices are deadlocked and the vote of an as-yet-unconfirmed Justice would break the tie. Per Stephen Wermiel of SCOTUSblog, this appears to have happened with two cases that were reargued after Justice Kennedy replaced Justice Powell, as well as with two cases that were reargued after Justice Alito replaced Justice O’Connor. In all four instances, the case was initially argued before the preceding Justice, the case was subsequently argued before the succeeding Justice, and the case was ultimately decided by a 5-4 vote.
If Friedrichs is reargued next Term, then the outcome will of course depend on who the new Justice is.
Catherine Fisk is an OnLabor Senior Contributor. Brian Olney is an Associate Attorney at Hadsell Stormer & Renick.
Advocates of weakening public sector unions, both some who have filed briefs in the Friedrichs case and others who support anti-union legislation in Wisconsin and other states, assert that public sector unions contribute to state budget deficits and that public employee pensions are a main culprit. The truth is more complicated. Unionization doesn’t cause either budget deficits or unfunded pension liabilities. Bad governance does. Some unions may contribute to bad governance but they are not the sole cause, and unions can help solve the problem.
Although labor costs consume a relatively larger share of revenues in the public sector than in the private sector, studies show this is because government tends to provide more labor-intensive services, and also services that require a higher level of education and training (e.g., teachers and public health workers). Collective bargaining, in the states that allow it, is only one aspect of a complex web of law that, in every state, regulates compensation and working conditions for public employees. A bewildering array of state and local constitutional or charter provisions, statutes, and administrative rules specify pay, benefits, and pensions for government workers by job category. Elimination of collective bargaining will not eliminate the budget or pension funding deficits that exist. But it may eliminate the last defined benefit pension plans, which would be bad for workers and bad for the economy as a whole.
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.