Conservatives vow to ask supreme court to rehear deadlocked union case

America’s unions rejoiced this week when the supreme court announced a 4-4 tie and stepped back from crippling public sector unions’ ability to collect fees from workers.

But the supreme court deadlock, brought about by the death of conservative justice Antonin Scalia, will not last forever and labor’s critics and foes have vowed to keep up the fight – redoubling efforts to persuade the courts to proscribe any legal requirement that workers pay union fees.

Indeed, the Center for Individual Rights, a conservative legal advocacy group, said it would ask the supreme court to rehear the deadlocked case in which 10 California teachers had petitioned the court to rule that requiring them to pay any union fees violated their first amendment rights.

The case – Friedrichs v California Teachers Association – had terrified unions. Before Justice Antonin Scalia died in February, conservatives were confident that the court would rule 5-4 in their favour that it was unconstitutional to require public sector workers to pay so-called “fair share fees” to support their unions.

In saying he would seek a rehearing, Terry Pell, president of the Center for Individual Rights, said: “Either compulsory dues are an acceptable exception to the first amendment or they are not. A full court needs to decide this question and we expect this case will be re-heard when a new justice is confirmed.”

Friedrichs is one of more than 20 cases in which conservative, libertarian or anti-union groups are seeking to have courts declare unconstitutional mandatory union fees or even the long-time tradition of exclusive union representation.

Mary Kay Henry, president of the Service Employees International Union, said she viewed the Friedrichs’ decision as a temporary reprieve. “There are more than two dozen other cases in the pipeline We understand that the wealthy special interests in this county see worker organizations as a challenge, and they’re going to continue their 40-year attack again these organizations,” she said.

Union officials voiced upset with Pell’s plans to ask the supreme court to rehear Friedrichs. “By refusing to accept the court’s ruling and petitioning for a rehearing, they expose their agenda for what it is – a brazen assault on working people,” said Randi Weingarten, president of the American Federation of Teachers.

The Center for Individual Rights, financed by the Bradley Foundation and other conservative groups, asserted that it had brought the Friedrichs case to promote worker freedom and protect the teacher plaintiffs from having to pay fees to a union they disagree with on issues like tenure and charter schools. But labor leaders maintained that the lawsuit’s real purpose was not to protect employee freedom or students, but to hobble public sector unions and their treasuries, not least because public sector unions are among the biggest donors to the Democratic party.

Catherine Fisk, a labor law professor at the University of California, Irvine, said the future of Friedrichs will likely hinge on who the next president is. If a Republican wins and appoints a conservative to succeed Justice Scalia, then, she said, the court’s new conservative majority would be eager to rehear the case. But Fisk said that if a Democrat wins the presidency and gives the court a liberal majority, the court is unlikely to take up the case again – and the Center for Individual Rights might then drop efforts to seek a rehearing.

Fisk said: “I think the anti-union forces will go back to doing what they’ve done for the past decade – try to get state legislature to enact right-to-work laws or eliminate fair-share fees or go the Wisconsin route and eliminate collective bargaining for various groups of public employees.”

Trey Kovacs, a policy analyst with the Competitive Enterprise Institute, a libertarian group, said states should seek to do what the supreme court refrained from doing and bar any requirements for public-sector workers to pay fair-share fees. “Now it is up to state legislatures to provide public employees with the freedom to choose whether or not to pay for union representation,” Kovacs said.

In Illinois, the Liberty Justice Center, another libertarian group , is pushing ahead with a case asking the federal courts – in a case much like Friedrichs – to prohibit the American Federation of State, County and Municipal employees from collecting fair-share fees.

In another case that conservatives say promotes employee freedom and labor leader say seeks to sabotage unions, the National Right to Work Legal Defense Foundation, an anti-union group, brought a federal lawsuit in Texas on behalf of six airline workers who are seeking to overturn any requirement for them to pay union fees. While Friedrichs involved public employees, the Texas case, Serna v Transport Workers Union, involves private-sector workers.

In it, the plaintiffs argue that requiring airline workers to pay union fees is “state action” and violates their first amendment rights because the airlines are acting “under color of federal law”, under the Railway Labor Act (RLA), which governs the airline and rail industries. In the lawsuit, the airline employees say it is an unconstitutional for a union contract to require them to “opt out” of paying union fees.

Conservative groups have also brought several cases asking the courts to rule that the basic notion of exclusive representation – enshrined in the National Labor Relations Act of 1935 – violates employees’ first amendment rights under the notion that exclusive representation forces many workers to be represented by unions they might disagree with.

In February, however, in a Massachusetts case involving child-care workers paid by the state, former supreme court Justice David Souter, sitting on a three-judge panel in the first circuit court of appeals and writing for the majority, upheld exclusive representation, finding no violation of workers’ first amendment rights.

Not surprisingly, labor unions are pushing for Obama’s nominee, Merrick Garland, to be confirmed to help give the court a liberal – and presumably more pro-labor – majority. Like many progressive groups, unions are urging the Senate’s Republican majority to agree to a confirmation vote.

“It’s time for senators to do their job and appoint a successor justice to the highest court in our land,” said Eric Heins, the president of the California Teachers Association, the defendant in Friedrichs.