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From the President: What Can We Learn from the Friedrichs Case?

By Rudy H. Fichtenbaum

In late March, following the death of Justice Antonin Scalia, the Supreme Court issued a 4–4 decision in Friedrichs v. California Teachers Association, a case with far-reaching implications for public-sector workers. The tie vote means that the lower-court ruling, affirming the constitutionality of “fair share” in the public sector, will stand for the time being. Fair share, also called agency fee, requires that everyone who is covered by a union contract help cover the costs of negotiating, administering, and enforcing that contract. The Friedrichs case was a challenge to the forty-year-old unanimous decision in Abood v. Detroit Board of Education that established the constitutionality of fair share in the public sector. Until Scalia’s death, it seemed likely that the Court would overturn Abood and declare that fair share violates the First Amendment and therefore is unconstitutional.

Some might argue that the 4–4 decision, given the doctrine of stare decisis, means that fair share will remain constitutional. However, considering the Court’s apparent willingness to overrule the forty-year- old precedent before the death of Justice Scalia, it seems safe to say that the ultimate disposition of the constitutionality of fair share in the public sector will depend on the outcome of the November elections. Moreover, even without court challenges, we are likely to see a resumption of state-by-state campaigns to pass right-to-work laws such as those recently enacted in Indiana, Michigan, and Wisconsin.

In response to Friedrichs, the AAUP launched a campaign to build membership in our collective bargaining chapters at public-sector institutions. A number of our chapters had memberships hovering around 50 percent, and many relied on fair share for a substantial part of their revenue. In the shadow of Friedrichs, converting “fee payers” to members became a top priority. All of the chapters that accepted our offer to assist them in building membership made impressive gains.

Building membership is about more than just maintaining a stable flow of revenue. The real reason for building membership is that bargaining is about political power, and the foundation of political power for any union is membership. Suppose your membership is 50 percent and you take a strike vote. Even if 80 percent of your members vote to strike, you have the support of only 40 percent of the faculty. What message does that send to the administration? In contrast, if you have 80 percent membership and 80 percent of your members vote to strike, you have the support of 64 percent of the faculty. That is a huge difference, and one that will make the administration more likely to settle, especially if you can mobilize your members to engage in direct action through a contract campaign.

Being in a permanent organizing mode—visiting members one on one in their offices and building a strong system of department representatives—means that chapters will have regular contact with members and members will feel more connected to the AAUP on campus. This makes it easier to mobilize faculty for action in support of bargaining.

To remain successful in the current environment, we need to rely less on the law and more on collective action. Union dues are not like insurance premiums. Having a powerful union requires more than writing a check once a month. Successful unions rely on their ability to mobilize members and bring political pressure to bear on their administrations.

There is also a lesson here for our advocacy chapters. It is important to understand that if you teach at a private institution and cannot organize under the National Labor Relations Act because of the Yeshiva ruling or because you teach at a religious institution, or if you teach at a public institution in a state where there is no enabling legislation, you can still organize and bargain collectively with your administration.

Remember that unions existed long before the passage of the National Labor Relations Act and public-sector unions existed before enabling legislation. What does it take to bargain collectively? Organizing, building membership, and collecting dues allow you to create and sustain a structure through which you and your colleagues can mobilize for collective action. This is true whether or not you have a legally sanctioned bargaining unit.

Despite the 4–4 decision, the outcome of this case will likely be determined by the November elections, and we all need to be willing to change the way we operate and strengthen our ability to engage in collective action.

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