Back to the ballot.
A conservative majority on the U.S. Supreme Court was openly preparing to strike down public employees' unions' right to collect dues from all workers they represent. Fate intervened when Justice Antonin Scalia died last month, and on Tuesday the union dues case sputtered to an anti-climactic 4-4 tie. The court's deadlock elevates the importance of the struggle over union dues at the state level, including in Oregon.
At stake is the balance between workers' First Amendment rights of free speech and free association on one hand, and their obligation to pay for the benefits unions provide on the other. No public employee can be compelled to join a union, but unions are required to represent all employees. Public employees also cannot be compelled to pay dues to support the political activities of a union that represents them.
In 24 states, including Oregon, public employee unions are allowed to collect dues from all represented workers, whether they join the union or not, to support the cost of negotiating labor contracts. These "fair share" or "agency" fees are meant to ensure that all workers who gain higher pay, better benefits and job protection as a result of union bargaining help pay the bills for the service. Workers who are allowed to opt out of paying dues while still enjoying benefits that flow from a negotiated contract would be getting something for nothing.
The Supreme Court has struck a balance between workplace rights and obligations before. In a 1977 case, Abood vs. Detroit Board of Education, the court found merit in the argument that workers receiving union benefits without paying union dues would be free riders. Since then Abood has been the court's guiding precedent, leading to rulings upholding agency fees in half a dozen cases.
But libertarian defenders of the First Amendment and anti-union groups have continued to argue that no workers should be compelled to pay dues to unions they do not support, and that no distinction can be drawn between political and non political union activity. These arguments have prevailed in 26 states that have passed so-called right-to-work laws, allowing public employees to not only opt out of union membership but to decline to pay dues for representation in contract talks.
Oregon would become the 27th if a right-to-work measure qualifies for the November ballot and is approved by voters. Last week, the Oregon Supreme Court sent the ballot title for a right-to-work measure back to the attorney general's office for rewording. The initial wording had satisfied neither supporters nor opponents, indicating that the issue is a heady mix of conflicting principles and raw pro- and anti-union politics.
A U.S. Supreme Court decision could have made the Oregon initiative moot. Conservatives on the court have been looking for a chance to overturn the Abood precedent. In a 2012 case, Justice Samuel Alito wrote that "compulsory fees constitute a form of compelled speech and association," and that "our cases to date have tolerated this 'impingement'." Translation: Bring us a challenge to agency fees, and we'll take it from there.
The case came in the form of Friedrichs vs. California, in which 10 public school teachers sued to overturn their state's collective bargaining law which, like Oregon's, allows public employee unions to collect fair-share dues. But it reached the court too late to take advantage of Alito's invitation. With Scalia gone, the court lacked a majority in favor of the right-to-work concept. After the 4-4 vote, a lower court ruling upholding California's collective bargaining law stands, as does the Abood precedent.
Now it's up to the states to decide whether right-to-work laws create free riders, or whether fair-share dues violate workers' rights. The question has split the Supreme Court right down the middle, so Oregonians will have to decide for themselves.