Lively forum centers on a divisive Supreme Court case

Labor leaders from the campus and the community joined law students for a preview of the new U.S. Supreme Court term – one which includes a case that could threaten the survival of unions.

Held Oct. 5 – the first Monday in October, traditionally when the Court begins its session – the forum was called “First Monday: The Supreme Court’s Upcoming Term: First Amendment in the Workplace.” It was sponsored by the School of Law’s Career Services Office and the student chapter of the progressive-leaning American Constitution Society.  Student leaders of that group, Melanie Prasad '17, Jayne O’Connor '17 and Anita Delgosha '17, spoke about hearing Supreme Court Justice Ruth Bader Ginsburg speak at the national convention of the American Constitution Society, which awarded the three students scholarships to attend the summer event.

Professor Martha McCluskey and Lise Gelernter, a member of the teaching faculty, gave the background of one of the highest-profile cases on the Court’s docket in this term: Friedrichs v. California Teachers Association.

The case challenges a core element of American labor law: the idea that a union has a duty to bargain for all the workers in a unionized workplace – and that it may charge even non-members an “agency fee” in return for doing so. Long thought to be essential to promoting labor peace and avoiding the problem of “free riders,” agency fees have come to be questioned in recent Supreme Court opinions.

Friedrichs presents this question in the context of public sector bargaining. The challengers assert that public sector bargaining is so much like lobbying that they should not be forced to support it, citing their First Amendment right to free speech. Supporters of the fee fear that its demise could lead to the dismantling of public-sector unions, such as those representing Buffalo teachers and members of the University’s professional staff.

The immediate question for the Court, Gelernter said, is whether to overrule Abood v. Detroit Board of Education, a 1977 case affirming the use of the agency fee. “The Court recognized the impingement on non-union members’ rights to some extent,” she said, “but found it was justified by a state interest in keeping the collective bargaining relationship going.”

A short video laid out the personal cost to home health care workers after the Supreme Court ruled in 2014 that Abood did not cover them, making it more difficult for them to unionize.   

“This is part of a debate that has been going on since the 1930s,” McCluskey said. “From the beginning there was the argument that the First Amendment should protect people’s rights to not join a union. ‘The right to work’ is the phrase that often is used.

“This is about a movement to expand the First Amendment. The law recognizes that words have a context. What about advertising statements? If you are a drug company and you say this drug will cure cancer and there’s no evidence for that, is that free speech or is that an economic activity, a health claim that the government can regulate? The union dues that we’re talking about go to support a collective bargaining process which the Abood case recognized as more of an economic transaction. This is about, where do we draw the line?”

Unions are worried about the Friedrichs case, fearing that if non-members are no longer required to help cover the costs of union representation, the organizations will implode.

“If we lost agency fee payers alone, we’d be out of business in 18 months. That’s how dangerous this is,” said Thomas J. Tucker, president of the Buffalo Center chapter of United University Professions at the University at Buffalo, which represents UB’s faculty and professional staff.

“There’s a democratic process that has established the bargaining structure and has made the fee mandatory,” McCluskey said. “If you fervently believe it’s a violation of your freedom and your individual rights to be forced to pay an agency fee, why not go to the legislature through the democratic process? One of the interesting questions is, this case is constitutionalizing the right to take union services for free. Should we be concerned that we are giving so much power to an unelected court?”

“The case does bring up all the ramifications of looking at the First Amendment in a different way, from Citizens United on,” Gelernter said. “That opinion held that paying money is speech and therefore it’s protected by the First Amendment in the political arena. If corporations are going to be invested with the same First Amendment rights as natural people, is there a way to benefit from that as well? If this case goes against the unions, what do we do with idea that we should have the same First Amendment rights?

“It’s an interesting time for First Amendment jurisprudence in an academic way, but also for creative lawyers and policy makers.”

The event was part of the annual national First Monday program to promote law student engagement with public interest law. The program is organized by the Alliance for Justice, a national association of more than 100 organizations working to promote progressive constitutional values and access to the courts.