Power in numbers will trump loss of agency fee
By Ira Fader
L ife sure looked different before Election Day, Nov. 8, 2016. From a legal perspective, one big difference was the prospect of a
U.S. Supreme Court whose majority would finally
move toward the political center and away from the
consistently hard-right positions taken by Justices
Antonin Scalia, Clarence Thomas, Samuel Alito, and,
slightly less often, Chief Justice John Roberts. When
this bloc was joined by Justice Anthony Kennedy, we
found ourselves enduring free speech for corporate
money in elections, the dismantling of the Voting
Rights Act of 1965, and several cases eroding the
rights of public-sector unions.
The death of Justice Scalia meant the death of the
well-known Friedrichs case. Friedrichs, as many will
recall, was a case financed by an anti-union right-wing
group that sought to end the right of public-sector
unions such as the MTA to collect a fair-share fee —
or “agency service fee” — from non-members whom
we are obligated to represent. And so while it would
have been unseemly to welcome the death of the
judge, it was not at all unseemly to welcome the end
of the case.
Moreover, had Scalia been replaced by Judge
Merrick Garland, who was President Barack
Obama’s choice for the court, even the subsequent
election of Donald Trump would not have been able
to revive the principle of Friedrichs. Forty years of
stable court decisions affirming fair-share fees as
a necessary component of public-sector unionism
would have been safe from right-wing attack.
But like a zombie from “Night of the Living
Dead,” the Friedrichs argument is once again
lurching toward us. Neil Gorsuch has now been
sworn in as the ninth justice, and he is as firmly
rooted in the legal right wing as Scalia was. And
while the Friedrichs case itself remains interred,
there is no shortage of look-alikes in the federal court
system slouching toward Washington, D.C., and the
Supreme Court’s now-full bench.
Everyone is trying to understand what Gorsuch’s
ascension to our highest court foretells for our
country, our government, our schools, our colleges
and universities, our unions and our rights. Can we
hope that his very human reaction upon learning of
Scalia’s death — he publicly admitted that he cried
— perhaps hints at a man of deep feeling for others?
For students? For educators? For workers?
Don’t hope too much. Gorsuch’s track record
as a judge on the 10th Circuit Court of Appeals
reflects a mindset that favors corporations and
employers and disregards working people, students,
unions, consumers, the environment, and the role of
government in protecting them all.
As the National Education Association has
noted, Gorsuch has ruled against special needs
students in every Individuals with Disabilities
Education Act case he has decided. One student,
for example, was denied any recovery under the
IDEA after he left a school out of frustration with
the school’s repeated violations of that law. A
developmentally disabled student fared no better in
Judge Gorsuch’s court despite having been placed
at least 30 times in a small “timeout room,” even
though the student lacked the mental capacity to
understand the purpose of the punishment.
W e learn from the NEA that his dissents have delineated a far-right viewpoint that is repeatedly against employees. They
include one in a case where the company’s failure to
train an employee caused his death and one in a case
in which a company fired a whistleblower. There
was another in which a company discriminated and
retaliated against a female truck driver — and let’s
not forget his position in what has been called the
“frozen truck driver case.” Just Google “truck driver
case Gorsuch.” Read it and weep.
Gorsuch is not great on discrimination rights,
either. He issued the majority opinion in 14
published cases and ruled for the employer three
times more than for employees. He ruled in favor
of a corporation’s right to exclude contraceptive
coverage from employee health plans over the rights
of women not to be discriminated against. And he is
highly antagonistic to the power of federal agencies
to regulate workplace discrimination, worker safety,
health care and other rights.
The Million Dollar Question for public-sector
unions is this: Where will Justice Gorsuch land in the
next case that echoes Friedrichs There are several
pending around the country, but one in particular has
already crawled out of its crypt: Janus v. AFSCME.
It is an Illinois case that was, predictably, dismissed
by the U.S. Court of Appeals for the 7th Circuit and
will soon be the subject of a “writ of certiorari” — a
petition to the top court asking for judicial review.
Like Friedrichs, it is funded by a well-financed
anti-union outfit. Like Friedrichs, it was litigated on a
fast track to the Supreme Court. And like Friedrichs,
it is designed to debilitate public-sector unions by
attacking the unions’ right to collect fair-share fees
from non-members to cover their share of collective
Of course, one can never be certain how a judge
will rule in any given case. But the expectations
here are about as low as they can go. We must
proceed on the assumption that Justice Gorsuch will
deliver exactly what President Trump appointed
him to send forth: a Janus-faced ruling that speaks
of First Amendment rights but is more honestly
about knocking the financial legs out from under the
public-sector labor movement.
Lest we forget: In Citizens United, the Supreme
Court held that our federal elections are better served
by the free speech of corporations and unions that
choose to speak with money in campaigns. Diminish
the union coffers and corporate money will speak
even louder than it already does.
S o are we left only with the option of agonizing over our fate? No. As a union, we control our own fate. Unions that have 100 percent
membership do not worry about Friedrichs zombie
cases. They do not collect fair-share fees because they
do not need to.
Everyone joins. Every member knows why he or
she is in a union. Every union member understands
the most basic workplace idea: There is power in
Ben Franklin’s often-quoted words come to
mind: “We must, indeed, all hang together or, most
assuredly, we shall all hang separately.” Or as the old
union slogan says: “Don’t mourn — organize!”
Ira Fader is the general counsel of the MTA.
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