March 2016 may be remembered as a turning point in the history of labor unions in the United States. On one side of the country, Gov. Jerry Brown announced his plan to institute a $15 minimum wage by 2022. And, in Washington, D.C., a deadlocked 4–4 Supreme Court decision in the Friedrichs v. California Federation of Teachers preserved the existing rights of public sector unions to collect fair share fees. Previous Supreme Court decisions had required all workers, even those who chose not be union members, to pay their “fair share” of the cost of representation and bargaining. Repealing this bedrock agency shop concept would have created a huge free rider problem for teacher unions and other public unions and a crippling loss of revenue. One only needs to look at the stark decline in union membership in states like Wisconsin to understand the danger presented by Friedrichs.
As TCF senior fellow Rick Kahlenberg has argued, Friedrichs represented a threat not just to the labor movement (35 percent of public sector workers belong to a union compared to just 7 percent of private sector) but to democracy overall. It is only in unionized workplaces that employees have the genuine right to due process before being fired and the right to bargain over the terms and conditions of work. Unions are still by far the largest organized way in which working class Americans participate in the political process, and provide a rare forum for working people to participate in high impact democratically run organizations. The impact of public sector unions is far greater. Teacher unions have been the nation’s most consistent defender of equity in education and against privatization. And, it’s no coincidence that the big increases of minimum wage have come in states like California with large union populations (California has the sixth highest union density in the country) that are pushing for labor standards for all workers regardless of whether they are members or not.
Friedrichs provided a reprieve, but the danger of these kind of fundamental challenges remain. The appointment of the replacement for Justice Scalia will determine the fate of future challenges to the fundamental rights of unions, as even Justice Anthony Kennedy indicated his openness to a Friedrichs-type to challenge to private sector unions. Furthermore, unions have the opportunity to take the peace dividend and turn Friedrichs into an opportunity to develop new organizing strategies to build the allegiance of their members and momentum for labor law reform. It has been a startling turn to go from warnings of the apocalypse to optimism in a matter of months, but March 2016 truly has the potential to live on in history books as a pivotal moment for working people and democracy.