In late March 2016, the labor movement breathed a collective sigh of relief. The US Supreme Court had allowed the 1977 Abood ruling on the right of unions to collect “fee-payer” dues, which had been challenged in the much-discussed Friedrichs v. California Teachers Association case, to stand. The term at the heart of both cases refers to fees paid by members of collective bargaining units who have not signed up to be members of the union. In some states, these members are referred to not as fee payers but as fair-share payers, a term that more accurately reflects what they are—individuals who are not members of the union but pay a share of union-member dues because they enjoy the same protections and benefits of the collective bargaining agreement as those who have signed a union card.
The respite for unions was not a result of a decision by a full Court to reject the arguments of the plaintiff, however. It was a split 4–4 vote occasioned by the unexpected death of conservative justice Antonin Scalia. As was pointed out by labor advocates and antiunion activists alike after his death, the case could be brought before the Court again. And it is now almost certain that the case will return in some form, given that the Trump administration will seek to appoint a ninth justice at least as conservative as Scalia.
The Friedrichs case was named for a California schoolteacher, Rebecca Friedrichs, who, along with several antiunion colleagues, argued in the interviews and press releases leading up to the case that her individual rights were being violated because she was “forced” to pay union dues. But the assertion that the case was brought to protect her rights or indeed those of any other individuals is ironic, since those pushing it forward and bankrolling it, as well as parallel efforts to increase the number of so-called right-to-work states, are anything but individuals.
The organization that took Friedrichs to the Supreme Court is the Center for Individual Rights (CIR), whose offices are just a block away from those of the AAUP in Washington, DC. The center’s board is made up of representatives of investment firms and antiunion law firms and includes a former director of the right-wing Olin Foundation. CIR was founded in 1989, when it claimed, according to the organization’s website, to be part of a broader “conservative public interest law firm movement.” The “movement,” however, is not one of individuals concerned about supposed violations of their individual rights. It is one of law firms and investment bankers.
CIR’s founders, the group’s website asserts, “knew that public interest law firms could, over time, change the law,” a lesson they learned from observing the success of the American Civil Liberties Union and other progressive rights organizations. And that is precisely what they have worked to do. Claiming a mandate to “defend individual liberties, broadly understood to encompass both civil and economic rights” (my emphasis), the organization has grounded its work in the premise that any legal, institutional, or government mandate or practice that addresses and protects the rights of a particular group is de facto a denial of rights to individuals. But CIR is clearly interested only in the supposedly violated “rights” of certain categories of individuals.
Since its founding, CIR has focused overwhelmingly on combatting what it terms “racial preferences” in hiring and in college admissions. It has argued consistently against affirmative action as the denial of rights to white individuals; it has championed white college applicants who assert that they were denied admission because “minority quotas” mandated the admission of less-qualified students of color; it has lobbied against the Voting Rights Act. A long and representative list of the “racial bias” cases of which CIR is proud can be found at https://www.cir-usa.org/cases.
CIR also supported the efforts by the Boy Scouts to prevent gay men from serving as troop leaders. And, in an early case involving higher education, it attacked what it claimed were unfair attempts to achieve “equity for female faculty members regardless of merit.”
CIR is bankrolled by a wide array of conservative foundations, among them the Bradley Foundation, which had donated $2,310,000 as of 2014 and had previously played a decisive role in supporting the campaigns of Wisconsin governor Scott Walker and his union-busting agenda; the Olin Foundation, which had donated nearly $2 million; and the various Koch brothers funding channels, which together had donated $1,600,000. It also receives substantial support from the Donors Trust, which allows anonymous individuals to donate millions in what Jane Mayer of the New Yorker has called “dark money.”
As if That Weren’t Enough . . .
An organization that has worked parallel to CIR is the National Right to Work Committee (NRTWC), which brought the Harris v. Quinn case, the precursor to Friedrichs, to the Supreme Court in 2014. Unlike CIR, which takes on a variety of what it sees as individual rights cases, the NRTWC exists for the sole purpose of lobbying for antiunion legislation, most often in the form of “right-to-work” laws and mandates at the federal and state levels. These laws hobble unions by allowing employees to enjoy the protections and benefits of a union contract without being obliged to join the union or to pay dues to support its work.
On the eve of the 2016 elections, there were twenty-six right-to-work states. Four of the most recent states to pass right-to-work legislation—Indiana (2012), Michigan (2013), Wisconsin (2015), and West Virginia (2016)—did so as a result of heavy NRTWC lobbying. In each instance, politicians who supported the legislation received financial and advertising support for their elections and reelections. Indeed, the NRTWC had doled out more than $33 million by 2013 in donations to political campaigns and was itself part of the larger efforts by the right-wing groups that were so successful in bankrolling Scott Walker. Its funders include the Walmart heirs’ Walton Family Foundation and, again, the Olin and Bradley Foundations, as well as many others.
The rhetoric employed and encouraged by the NRTWC is both incendiary and outrageous. It refers to states that are not right-to-work as “forced unionism states.” In its parlance, elected union leaders are “union bosses,” and, in a clear nod to libertarian paranoia, the NRTWC claims that the US government is in league with those “bosses” to deny individual rights to workers. It also claims that its foundation serves to “provide free legal aid to employees suffering from compulsory unionism abuse.” Unions don’t just abuse individuals, the group claims, but, using a logic reminiscent of the red-baiting of unions in the 1950s, they are also a threat to national security.
Brooklyn College’s Corey Robin has noted that, in 2003, then House majority leader Tom DeLay sent a fundraising request to National Right to Work Foundation supporters, arguing explicitly that he needed funding to fight unions, since they represented a “clear and present danger to the security of the United States.” “Big Labor bosses,” DeLay said in a passage quoted by Robin in his 2011 book The Reactionary Mind, were “willing to harm freedom-loving workers, the war effort, and the economy to acquire more power.”
The NRTWC has been emboldened by its victories first in Indiana, then in the two formerly solid union states of Michigan and Wisconsin, and then last year in West Virginia. It clearly did not wait until after the presidential election to try to “turn” other states. So far, Governor Bruce Rauner has failed to flip union-strong Illinois. With the victory of a Republican candidate for governor in Missouri, it is likely to join the other right-to-work states, as are Kentucky and Maine after Republican victories in those states. And the NRTWC will lead them by the hand—its website includes boilerplate language to use in drafting a “model state right to work law.” In addition to these increasingly successful efforts at the state level, the NRTWC lobbied successfully to defeat passage of the Employee Free Choice Act championed by the late Senator Ted Kennedy and has supported two federal right-to-work bills now before the US Congress. The Senate version, S. 391, is sponsored by the usual Republican suspects, including Senators Mitch McConnell, Joni Ernst, Orrin Hatch, and Ted Cruz; the House version, H.R. 612, is sponsored by a long list of Republicans. And now that both the House and Senate, as well as the White House, are controlled by Republicans, we are sure to see vigorous attempts to pass both bills.
Countering the Antiunion Agenda
The logic and rhetoric of these concerted attacks on unionism are based on a cruel false dichotomy—unions, so the argument goes in various iterations, because they negotiate on behalf of groups of workers through collective bargaining agreements, are antithetical to individual rights. Reading the cases, publications, and websites of these organizations makes it clear that their arguments are the same ones that are coughed up by employers in antiunion campaigns whenever workers decide to organize: “If you vote for a union, you’ll give up your individual rights.”
The election of Donald Trump—who has made no secret of his antiregulatory agenda, has acted as a vigorous union-buster in negotiations with his own hotel and casino employees, and has stated his preference for right-to-work laws—will only empower all the groups that have worked so hard against labor behind the scenes. We can expect that attempts to dismantle labor rights will be both concerted and aggressive.
The most immediate threat will be the appointment to the Supreme Court of an antilabor justice, who will allow again for a conservative majority. As Lee Saunders, president of the American Federation of State, County, and Municipal Employees, has pointed out, “There are at least twenty-seven cases in the lower courts that would do the same thing as Friedrichs would have,” and since any one or more of those cases are likely to be taken up by a Trump Court, the challenge to labor will be great.
We must be ready to meet this challenge. First, we all know that, rather than limiting our rights as faculty, a collective bargaining agreement codifies and expands them, so that we have both rights on the job and recourse if those rights are violated. We need to let more of our friends, family members, students, and colleagues know this, and we need to organize, organize, and organize some more, both to defend and strengthen our own unions and to defend labor rights in general. We have already seen how some AAUP collective bargaining chapters in Michigan have been able to withstand the implementation of right-to-work laws there because they insisted on retaining strong contracts. And we have seen this year how faculty at Plymouth State University in New Hampshire and Northern Illinois University refused to be manipulated by the rhetoric of loss of individual rights put forward by their employers, choosing instead to protect their individual rights by coming together through concerted activity to form collective bargaining chapters.
And we can vote. All of the money thrown at politicians by well-financed lobbying firms won’t have much impact if those politicians are not elected or are voted out of office. Our votes in the 2018 midterm elections could shift the power in Congress.
However welcome the respite from a potentially negative Friedrichs decision was, that threat is about to return with bells on. Get your colleagues together and organize listening sessions for your legislators to hear from their constituents. Organize teach-ins and public forums to educate folks, and join with community groups defending reproductive rights and the rights of immigrants. We need to push back in our conversations with friends and family members and with legislators, in editorials in our newsletters and in public meetings, and in the voting booth. And we must fight for our students, who stand to lose the most if labor rights are decimated.
Never have our concerted voices been more important. We can do this. We must do this.
Jamie Owen Daniel is a field service representative in the AAUP’s Department of Organizing and Services. Her e-mail address is firstname.lastname@example.org.