Using the Court to Oppose Unions

by Rick Patelunas

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Elections, right-to-work laws and battles in states like Wisconsin often grab the headlines, but the courts can be just as an effective tool of the Right to oppose workers’ rights.  The basic right to bargain collectively with any effectiveness requires resources and funding those resources should be shared by those who realize the benefits.  In an effort to cut off or stifle funding, right-to-work advocates argue that requiring union contributions by workers is coercion that violates the workers’ First Amendment right to free speech.  The reasoning is that individual workers may not agree with all of the union positions and by contributing, they are forced to aid policies they didn’t support.

In 1977, the Supreme Court rejected that argument in Abood versus the Detroit Board of Education.  The Court held that workers’ First Amendment rights were not violated when they are required to pay fees to a union for collective bargaining and grievance purposes, although the Court made a clear distinction between workplace representation and politics.  The decision explained that the fees could not be used to support political candidates or advocate for issues unrelated to collective bargaining.  The Abood findings were later reinforced in Ellis versus Brotherhood of Railway, Airline and Steamship Clerks in 1984 and again in Chicago Teachers Union versus Hudson in 1986.

Things began to change in 2012, when the National Right to Work Legal Defense Foundation filed Knox versus Service Employees International Union.  The argument was that Knox had not been given adequate notice of political fundraising by the union and the provision allowing workers to “opt out” of the political contribution was an insufficient remedy.  The Court under Chief Justice Roberts agreed and decided that employees had to “opt in” to political contributions.  That was followed in 2014 when the Court ruled in Harris versus Quinn that requiring non-union home care employees to pay union dues did violate their First Amendment rights.  The Court noted the distinction between public employees in Abood and private employees in Harris, but doubts about Abood surfaced in both decisions.

Nearly forty years after the Abood decision, the First Amendment issue will be revisited when the Court considers Friedrichs versus the California Teachers Association in its upcoming session.  The Center for Individual Rights brought the case arguing that compulsory fair share fees violate the free speech of teachers who decide not to join the union.  Fair share fees are collected for representation costs in collective bargaining and the argument is that teachers must opt in to fair share fees.  The argument expands Knox beyond political fundraising to all fees, including those related to collective bargaining.

If the Knox and Harris trend continues, Friedrichs could be catastrophic.  Writing in The American Prospect, Professor Garrett Epps of the University of Baltimore wrote of the Knox decision that unions are living on borrowed time.  Not only might Friedrichs expand that notion, the impact would be much wider than California because many states have similar laws, thus, threatening the existence of public unions throughout the country.

The Economic Policy Institute (EPI) has done a number of studies demonstrating the benefits of collective bargaining and recently released a study of the potential impacts of the Court Decision.  Among the findings in Eliminating Fair Share Fees and Making Public-Employment “Right-to-Work” Would Increase the Pay Penalty for Working in State and Local Government, were:

  • If the Supreme Court renders agency shop clauses unenforceable for public employees, it will shrink union membership because more people will try to gain services without paying for them (the “free-rider” problem)…
  • If the court renders agency-shop clauses unenforceable for public employees, it will reduce public-employee compensation by increasing the pay penalty for working in state and local government…

The court system may not be in the headlines and it might be slower, but the Right continues to use it as one of its tools.  Four members of the Roberts Court will reach eighty years of age by 2018, the second year of the next Presidency.  The Right is also aware of that fact as the Presidential primary season heats up.  Likewise, progressives and unions are considering candidates, with some supporting Clinton and others Sanders.  The next President could solidify the conservative trend or turn the Court more union-friendly for years to come.  The next election matters.

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