Friedrichs v. U.S. Public Employee Unions


Under capitalist law what was legal yesterday, indeed for the past 40 years, can become instantly illegal today. Such will likely be the outcome with regard to the lawsuit that guts public-employee union rights, which was filed by Los Angeles school teacher Rebecca Friedrichs and nine other California teachers. Friedrichs v. California Teachers Association (CTA) is being waged with the help of several right-wing legal think-tank organizations that are in the business of advancing reactionary issues in the courts under the cloak of defending constitutional rights.

On Jan. 11, the U.S. Supreme Court during oral arguments in the case signaled its intention to deliver a body blow to public-employee unionism nationwide. The CTA today represents 375,000 school employees in California. But 9 million other unionized public employees, 36 percent of all public workers in the country, will be dramatically affected if the Supreme Court’s expected May decision voids the right of unions to collect dues from all workers represented by union negotiated collective bargaining contracts.

During the hearing, Supreme Court Justice Samuel Alito indicated that he had the votes to overturn the court’s “historic” 1977 Abood v. Detroit Board of Education decision that affirmed the right of public employee unions to collect an agency fee equivalent to union dues from all workers covered by union contracts.

The Abood teachers unsuccessfully argued in 1977 that they “were unwilling to pay Union dues, that they opposed collective bargaining in the public sector, that the Union was engaged in various political and other ideological activities that they did not approve and that were not collective bargaining activities.” They demanded that “the agency shop clause in the union contract be declared invalid under state law and under the United States Constitution as a deprivation of their freedom of association protected by the First and Fourteenth amendment.”

The justifying language employed by the Supreme Court in the Abood decision, the abiding necessity of “stable employer-union relations” (or “class peace, ”if you please) was an expression of the relationship of class forces at that time as opposed to government largess toward unions. The 1960s and ’70s saw some 2000 militant and successful public-employee strikes, which more than doubled, if not tripled or quadrupled, teacher salaries over this period and otherwise improved both the quality of public education and the well-being of public workers, providing important and significantly expanding social services.

Public employees—previously serving as the “weak sister” of their private sector counterparts—used militant, repeated, and sometimes coordinated statewide strike actions to advance their cause and improve, often with important community support, public education. They inspired an entire generation with the credo that democratic, fighting, and socially conscious unions were critical to advancing the quality of life and the public good.

In the later 1970s, Michigan teachers alone engaged in more than 300 strikes in a single year. These decades saw an entire generation—millions of people—infused with the radicalism engendered by the civil rights and anti-Vietnam War movements, entering a dramatically expanding public-service sector.

At the same time, the Vietnam and civil rights era saw a tripling of funds going to public education and social services. With the U.S. emerging from World War II as the pre-eminent world power, with its “enemies” and “allies” alike devastated by an imperialist horror that took the lives of 80 million people, American capitalism had virtually no competition for world markets. Untouched by the ravages of war, U.S. capitalism, whose basic infrastructure was untouched and massively expanded, experienced an explosive growth cycle that lasted well into the 1970s. Monies flowing into public education and social services tripled. It was truly an era in which both “guns and butter,” plus or minus some minor economic fluctuations, were the norm.

The previously largely non-union public sector experienced an unprecedented burst of unionization, in part fueled by a radicalized generation of youth getting their first jobs and a period in which political and economic concessions granted by a prosperous and internationally dominant and unchallenged U.S. capitalism became the new norm.

History and consequences of dues check-off

The ready recognition and granting of impressive contracts to public employees were accompanied by a dues-collecting system know as check-off, wherein federal, state, county, and municipal agencies regularly collected union dues from employees and turned the funds over to the official bargaining agent—the union. This dues check-off system originally arose in the private sector during World War II. In return for a “no-strike pledge,” the Franklin Roosevelt administration offered the “patriotic” union bureaucrats a “deal” in which union dues would be automatically collected by the bosses and turned over to the unions, as opposed to the previous practice of union stewards collecting dues directly from the ranks.

The government used the deal to essentially freeze the existing Depression-era wage levels for the war’s duration—and longer, it hoped—while corporate war profiteers amassed incredible profits. Revolutionaries, while properly not opposing dues check-off, warned at that time that the long-term consequence would be an ever-widening gap between the union ranks and leadership and a corresponding separation of the ranks from democratic control of their unions.

Today, that separation exists in the extreme. In the private sector, unionization rates have declined from a 1955 high of 35-36 percent to today’s low of 6.7 percent—similar to that of the late 1920s. Union democracy in the pitiful and disassociated union conglomerates that remain barely exists, if at all. Petty-bourgeois bureaucratic parasites sit on top of most unions, essentially separated and insulated from the ranks in a myriad of ways, ever negotiating mergers among their shriveled unions to insure their stupendous salaries and privileges.

Today’s unions are tied hand and foot to the Democratic Party. In recent years, they have recorded the fewest number of strikes in the modern era and are largely reduced to begging for pathetic and rarely delivered crumbs or promises from lying capitalist politicians. Tens of millions of dollars from union members’ dues are expended in this always rigged and fruitless game of capitalist lesser-evil politics. The ideas that strikes and inter-union solidarity are key to labor’s future—and that working people sorely need an independent democratic and fighting labor party, operating in alliance with all of society’s oppressed—are alien to today’s labor “leader” fakers.

Capitalism is mired in the deepest economic crisis since the 1929-era Great Depression. Nevertheless, the ruling rich believe that even in the system’s advanced state of degeneration, today’s unions remain an obstacle to capitalism’s compulsion to extract and transfer every possible dollar of public-service expenditures from working people and the poor to the one percent, or better, the .001 percent—the elite group of multi-billionaires who own and control the vast portion of the nation’s property and wealth.

Capitalist privatization of the public sector has already taken its toll, with city and state governments across the country selling off previously publicly funded social services to private corporations. The growing privatization and massive expansion of the prison-industrial complex is but one glaring example. The de-funding and terrible decline of public education and the associated school-to-jail scenario plays out in the nation’s poor and oppressed communities, with more funds expended for prisons than schools and with the latter increasingly subjected to privatization through corrupt charter-school schemes based on the lie that the private sector is more interested and capable of providing quality education than the consciously de-funded public schools.

Union officials’ limp response

Tragically, to date, not a single public-sector union—SEIU, AFSCME, NEA, AFT, CWA, etc.—has uttered a word stating or implying that should the Supreme Court’s nine judges, appointed for life to oversee capitalism’s interests, make the collection of union dues illegal, they will act to defy the Court and all other government institutions that seek to enforce their anti-union dictates. Not one of the labor organizations has offered to mobilize union power in alliance with their natural allies among the poor and oppressed to effectively void any Court decision. Tragically again, the AFL-CIO has stood virtually mute in the face of an expected decision that may well reduce the ranks of labor to an even more pitiful level than the present modern-era low.

Frightened union officials have essentially accepted the “inevitability” of a negative Friedrichs decision and, at best, suggested that perhaps the damage to union funding might be mitigated by union staffers’ working harder and more closely with the ranks to collect dues. Others have suggested that perhaps their “friends” in the Democratic Party will advance legislation akin to the private sector’s National Labor Relations Act, wherein the mandatory payment of union dues (closed or agency shop) remains legal. A tiny handful has hesitatingly murmured that unions should consider the possibility of strike action somewhere down the line.

Recent experience has demonstrated that when unions lose the right to collect dues, union membership dramatically declines—a strong indication of the ongoing and deep alienation of the ranks from the union tops. In the case of the 60-hour 2005 New York City transit strike led by TWU Local 100, when the reactionary and punishing Taylor Law was imposed and union check-off ended, an estimated 30-40 percent of union members refused to pay union dues.

Similar figures have been reported in Wisconsin in the years following Governor Scott Walker’s 2011 signing of the infamous Act 10, which crippled the public-sector unions. Union membership declined by nearly 40% in the three years following the retrograde new law. Wisconsin’s Act 10 not only banned dues collection but prohibited public-sector unions from negotiating over benefits or working conditions; it imposed a ban on negotiating pay increases beyond cost-of-living adjustments; it increased employee health-care and pension costs, and required public-sector unions to win a new union recognition election every year by securing a majority of the entire bargaining unit!

So onerous were the provisions of Act 10 that many Wisconsin unions gave up collective bargaining efforts entirely. To lessen or minimize the impact of the seemingly inevitable negative Friedrichs decision, a number of pathetic union pundits have characterized Act 10 as “Friedrichs on steroids,” as if to say that “things could be worse”—a wacked-out mindset in which Friedrichs is labeled in advance as perhaps a “lesser evil.”

Others, including the CTA and its legal staff and associated “constitutional experts,” have spent their time presenting refined and well-honed technical arguments as to the interpretation of the Constitution’s First Amendment provisions, including the meaning of “freedom of speech” itself. Here their arguments aim at legally rebutting the central Friedrichs argument that the mandatory payment of union dues or an agency fee violates their basic free speech rights in that the CTA often takes political or economic positions on issues with which Friedrichs and Company disagree. “One cannot be forced to join or pay dues to an organization with which one disagrees,” so the Friedrichs argument goes.

The notion that the U.S. Supreme Court may come to its senses and uphold what has been the law for more than a half century, including the CTA’s defense of the U.S. Constitution and the First Amendment, seems far fetched in an era when the First Amendment has been shredded beyond recognition. A prime example is that of U.S. court’s across the country ruling that massive government surveillance on virtually the entire population is justified based on the present “need” to subordinate First Amendment rights to the “national security” interests of the government. Here we have a capitalist legal system that formally denies the entire population its Constitutional rights to free speech, association, and privacy on the one hand, while threatening to uphold the “free-speech” rights of 10 reactionary California teachers as opposed to the rights of nine million public employees!

Readers are likely well aware that union rights, including the right of unions to exist at all and operate as representatives of workers, has never been taken for granted in U.S. courts or in those of any other capitalist state. Indeed, before the historic trade-union upsurge of the 1930s, unions were banned and considered a form of “coercion,” contrary to the “ideals of the American Revolution.” Similarly unions were deemed by U.S. courts to be in violation of the “right to contract” in that they “prevented workers from forming individual contracts with their employers.”

The 1871 Sherman Anti-Trust Act deemed that unions were a form of “restraint of trade or commerce.” Using Sherman, the boss class issued an injunction against the famous nationwide rail strike led by renown socialist and labor leader Eugene Debs. Debs was imprisoned, and the strike was crushed.

New York State’s Taylor Law includes provisions to fine striking public employees one and a half days’ pay for every day on strike (“overtime in reverse”), as well as provisions for massive fines against striking public employee unions and imprisonment of union leaders. The routine use of employer-requested court injunctions to stop strikes remains the norm today.

In truth, the history of “labor law,” as with “constitutional law,” is a history of the class struggle and its associated relationship of class forces. When labor is strong and united, and when it consistently and repeatedly exercises its rights in defiance of each and every capitalist encroachment, it more often than not follows that the “law” is bent or broken entirely in accord with labor’s power in the streets, at the point of production and in its reflection in the hearts and minds of working people. Labor’s moral power, won in mass struggles and usually at great cost and sacrifice in defense of the oppressed and exploited, is the real source of its strength, as opposed to union staffers being more receptive to the individual needs of the membership—however important the latter is.

Today’s highly bureaucratized and increasingly corrupt labor mis-leadership— virtually always subservient to the Democratic Party—is a major obstacle to the return of American trade unions to the democratic and fighting working-class organizations that they were in the past and can be once again. Today’s top bureaucrats often pull down salaries and give themselves expense accounts akin to their corporate counterparts. They rarely cease pontificating about the obsolescence of strikes and cross-union solidarity. In place of fighting the boss class they engage in internecine warfare via endless raids and other operations to weaken unions they seek to absorb.

Labor retains the power to fight back

However, that labor retains the power of massive mobilization is unquestioned. The initial response to Wisconsin Governor Walker’s legislative smashing of union rights was followed by 100,000 workers mobilizing in the state capitol and literally occupying the seat of government power. But after a week of sustained mobilization, the top union brass ended the occupation and shifted to the electoral arena in a failed effort to recall the governor. This shift from workers power in the streets to the corporate-dominated, media-controlled electoral arena spelled the death knell to a once promising struggle. If the affected unions, in alliance with the whole labor movement, had gone on to close down the entire state—as opposed to the unions’ financing an electoral effort, in alliance with the anti-union Democrats no less—the outcome might have represented a historic defeat for the union busters. Instead, the union tops orchestrated a historic defeat for all working people.

Similarly, labor’s acquiescence to Friedrichs, signaled by its abject failure to even consider the massive mobilization of its ranks, must be considered yet another terrible defeat.

This writer can offer no magical solutions to counter the immediate threat posed by an expected pro-Friedrichs Supreme Court decision. It is only necessary to note that today, given the increasingly rabid anti-worker attacks of a crisis-ridden U.S. capitalism, any important labor victory requires a level of unity, solidarity, dedication, and leadership never previously witnessed. A failing capitalism has no alternative other than to take yet another pound of flesh from the workers’ movement and, indeed, from all other social struggles that fight for justice and freedom.

A revived labor movement can do no less than bring onto the field of battle the full force of its minions and its natural allies and all the oppressed and exploited and champion their causes. In the course of doing so, its still significant power, exercised on behalf of all capitalism’s victims, will inevitably win it the moral and organizational authority to become a central player in the historic battles in the years and decades ahead.

The forces to accomplish such a bold project will come in part from within the existing labor movement and will led by a fighting class-struggle left wing, aimed at mobilizing the ranks to challenge the bosses and simultaneously oust the present bureaucratic mis-leadership that stands in the way.

At the same time, there is no doubt that—given the simple fact that almost 90 percent of working people today have no union whatsoever—the future mass struggles, as in the past, will emerge when bold leaders, deeply rooted in working-class life, find a way to “organize the unorganized” while providing the political, organizational, and moral authority to win decisive victories. Inevitably, we should expect a powerful and necessary cross-fertilization between the future fighting forces both inside and outside the present union framework.

In the meantime, every inch forward, every body mobilized in struggles large and small, leads in the direction of a liberated working class. Every step backward, as is today’s hurried course of the backward and privileged few who sap workers strength and divide its ranks, ensures yet another defeat.

Jeff Mackler is a staffwriter for Socialist Action. He can be reached at  socialist