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Could Justice Scalia Be the One to Rescue Labor?

By now everyone who has regularly paid attention to what might optimistically be called the “American labor movement” is aware that the Supreme Court now holds in its hands the power to ruinously damage U.S. public sector unions. Indeed, it holds in its hands the power to eviscerate them, destroy them.

Next term, in the matter of Friedrichs vs. California Teachers Association, the high court will decide whether a worker is free to enjoy all the wonderful benefits of a labor union without having to pay one penny for any of them. As preposterously unfair as this sounds, those are the sorry facts framing the case.

In 1977, in the landmark Abood decision (Abood vs. Detroit Board of Education), the Supreme Court ruled that while public sector workers were entitled not to join the union, they were nevertheless required to contribute their “fair share” to the union treasury in order to defray the costs of the collective bargaining process that provided these superior wages and benefits.

You don’t want to be a union member? Fine, then don’t be one. You consider yourself an Ayn Rand-Howard Roarke rugged individualist, and don’t want to be a joiner? Fine, then don’t join. But don’t delude yourself into thinking that you can simultaneously be both a principled person and a greedy bastard, because that kind of hypocrisy is as transparent as glass and fools no one.

In Friedrichs vs. California Teachers Association, the argument rests on alleged First Amendment violations. The plaintiff, Rebecca Friedrichs, maintains that because
nightshiftorganized labor (and the CTA in particular) is overwhelmingly aligned with the Democratic Party, and the Democrats’ political platform is anathema to her.

It is Friedrich’s contention that she shouldn’t be required to donate money to causes with which she disagrees. Forcing her to do so would be a clear violation of the First Amendment. (Alas, if only we citizens could legally refuse to pay tax dollars that are spent on military adventurism.)

This argument is reminiscent of the one California lettuce growers used to dissuade Mexican laborers from joining Cesar Chavez’s United Farm Workers union (UFW). The growers reminded the pickers that the UFW was more or less “in the pocket” of the Democrats, and the Democrats were the ones in favor of Roe vs. Wade, which meant that their monthly union dues would be used to promote the murder of unborn babies.

Despite the fact that these laborers were victims—grossly underpaid and overworked by unscrupulous growers—they were not only socially conservative, rural people, they were Roman Catholics. Conflating union membership with “murdering unborn babies” confused and disturbed them, which, of course, was why the growers pre-packaged that argument and put a bow around it.

Ironically, in what is expected to be yet another razor-thin vote, the deciding ballot in Friedrichs could very well be that of conservative Justice Antonin Scalia. Of course, while no one can predict how Scalia will vote, there is evidence to indicate that he is in agreement with the “fair share” argument presented in the Abood decision.

Again, while no one’s going to hang their hat on this assumption, Scalia’s age (he’s 79) and cultural milieu (he was born in New Jersey) may work in labor’s favor. The son of Italian immigrants, Scalia had to have witnessed the salutary effect organized labor had on the working class, and has to know that unions can’t survive if Abood is overturned. Weirdo conservative or not, Scalia’s sense of “fair share” could prevail.

David Macaray is a playwright and author. His newest book is “Nightshift: 270 Factory Stories.” He can be reached at dmacaray@gmail.com

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David Macaray is a playwright and author. His newest book is How To Win Friends and Avoid Sacred Cows.  He can be reached at dmacaray@gmail.com

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