The Supreme Court’s 2016 schedule begins this morning with oral arguments in a dispute over public union dues.  In Friedrichs v. California Teachers Association the Court is asked to strike down two rules that that artificially prop-up public sector unions.

First, the Plaintiff challenges a California statute imposing “agency shop agreements” under which non-union members must nevertheless pay the union for its collective bargaining services.

Second, Plaintiffs seek to reverse California law that requires all employees to pay the union for non-bargaining activities unless they opt out each year, asking that the burden be reversed to require annual opt-ins for those who wish to contribute.

Both challenges are brought under the 1st Amendment’s implied freedom of association, as incorporated to the states through the 14th Amendment.

Background

Friedrichs is the latest in a 40-year series of cases challenging agreements that require non-members of union that have exclusive bargaining rights to contribute to the union anyway, and the statutes that allow or compel such agreements.

The current rule is from the Supreme Court’s decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977).  In Abood and a companion case, teachers argued that the agency shop agreement in their teacher’s union contract violated their 1st Amendment rights by requiring them to “associate” with the union and its speech in the form of mandatory dues.  The operative complaint in the companion noted the union was engaged:

in a number and variety of activities and programs which are economic, political, professional, scientific and religious in nature of which Plaintiffs do not approve, and in which they will have no voice, and which are not and will not be collective bargaining activities.

431 U.S. at 213.  Thus the core issue in Abood was that the employees did not want to contribute to causes with which they did not agree, but were compelled to do so by operation of state law.

The Supreme Court’s decision in Abood discusses two earlier cases in depth: Railway Employees Department v. Hanson, 351 U.S. 225 (1956) and Machinists v. Street, 367 U.S. 740 (1961).  According to the Abood Court:

The record in Hanson contained no evidence that union dues were used to force ideological conformity or otherwise to impair the free expression of employees, and the Court noted that, “[i]f assessments’ are in fact imposed for purposes not germane to collective bargaining, a different problem would be presented.” Ibid. (footnote omitted). But the Court squarely held that “the requirement for financial support of the collective bargaining agency by all who receive the benefits of its work . . . does not violate . . . the First . . . Amendmen[t].” Id., at 238.

431 U.S. at 219.  Hanson thus stands for the proposition that compelled contributions to collective bargaining and related expenses is permissible.  Five years later, in Street:

the record contained findings that the union treasury to which all employees were required to contribute had been used “to finance the campaigns of candidates for federal and state offices whom [the plaintiffs] opposed, and to promote the propagation of political and economic doctrines, concepts and ideologies with which [they] disagreed.” 367 U.S. at 744.

The Court recognized, Id., at 749, that these findings presented constitutional “questions of the utmost gravity” not decided in Hanson. . .

431 U.S. at 219-20.  The Street court went on to hold that requiring workers to contribute to union speech violated the National Labor Relations Act, thereby dodging the constitutional question.  Nevertheless, the language of the decision is clear enough that required contributions to non-collective bargaining activities are unlikely to survive judicial scrutiny.

So, after Hanson and Street, agency shop agreements’ constitutional status was that they could compel workers to contribute to union collective bargaining, and compelled contributions to union campaigning had not been deemed a constitutional violation only because the Court was able to find a statutory dodge.  Hanson and Street, however, did not involve public unions.

Public/Private Divergence

Abood incorporated Hanson’s endorsement of compelled contributions to collective bargaining into the public union context.  A public union is a union of government employees, as opposed to a union of workers in the private sector.  The plaintiff teachers in Abood made two arguments for treating public unions differently from private unions for purposes of analyzing an agency shop agreement.  As the Court framed it:

First, the appellants note that it is government employment that is involved here, thus directly implicating constitutional guarantees, in contrast to the private employment that was the subject of the Hanson and Street decisions. Second, the appellants say that, in the public sector, collective bargaining itself is inherently “political,” and that to require them to give financial support to it is to require the “ideological conformity” that the Court expressly found absent in the Hanson case.

431 U.S. at 226.  The Court summarily rejected the first argument, noting that the agency shop agreement is either compelled or allowed by statute for public and private unions alike, so any putative harm to reluctant members is a product of government action in either case.  As such, precedent from Hanson and Street applied notwithstanding the distinction.

The Court treated second argument with more substance.  The contention that collective bargaining is inherently political:

rests upon the important and often-noted differences in the nature of collective bargaining in the public and private sectors.  A public employer, unlike his private counterpart, is not guided by the profit motive and constrained by the normal operation of the market. Municipal services are typically not priced, and where they are they tend to be regarded as in some sense “essential,” and therefore are often price-inelastic. Although a public employer, like a private one, will wish to keep costs down, he lacks an important discipline against agreeing to increases in labor costs that in a market system would require price increases. A public sector union is correspondingly less concerned that high prices due to costly wage demands will decrease output and hence employment.

The government officials making decisions as the public “employer” are less likely to act as a cohesive unit than are managers in private industry, in part because different levels of public authority — department managers, budgetary officials, and legislative bodies — are involved, and in part because each official may respond to a distinctive political constituency. And the ease of negotiating a final agreement with the union may be severely limited by statutory restrictions, by the need for the approval of a higher executive authority or a legislative body, or by the commitment of budgetary decisions of critical importance to others.

Finally, decision making by a public employer is, above all, a political process. The officials who represent the public employer are ultimately responsible to the electorate, which, for this purpose, can be viewed as comprising three overlapping classes of voters — taxpayers, users of particular government services, and government employees. Through exercise of their political influence as part of the electorate, the employees have the opportunity to affect the decisions of government representatives who sit on the other side of the bargaining table. Whether these representatives accede to a union’s demands will depend upon a blend of political ingredients, including community sentiment about unionism generally and the involved union in particular, the degree of taxpayer resistance, and the views of voters as to the importance of the service involved and the relation between the demands and the quality of service. It is surely arguable, however, that permitting public employees to unionize and a union to bargain as their exclusive representative gives the employees more influence in the decisionmaking process than is possessed by employees similarly organized in the private sector.

431 U.S. at 227-29 (emphasis added).  The Court then denied these acknowledged and inherent political dimensions to public union collective bargaining had any relevance to whether contributing to such collective bargaining violated employees’ constitutional rights:

The very real differences between exclusive agent collective bargaining in the public and private sectors are not such as to work any greater infringement upon the First Amendment interests of public employees. A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint. Besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private, orally or in writing. . . .

The differences between public and private sector collective bargaining simply do not translate into differences in First Amendment rights. Even those commentators most acutely aware of the distinctive nature of public sector bargaining and most seriously concerned with its policy implications agree that “[t]he union security issue in the public sector . . . is fundamentally the same issue . . . as in the private sector. . . . No special dimension results from the fact that a union represents public, rather than private, employees.”

431 U.S. at 230-32 (Citation omitted.)  The Court therefore held that the rule from Hanson and Street that allowed compelled contributions to “collective bargaining, contract administration, and grievance adjustment purposes” applied to the public union context as well.

The Court then confirmed the suspicion from Street that compelled contributions to a public union’s campaigning activities violated employees’ First Amendment right of free association.  The key:

is the proposition that a government may not require an individual to relinquish rights guaranteed him by the First Amendment as a condition of public employment.  The appellants argue that they fall within the protection of these cases because they have been prohibited not from actively associating, but rather from refusing to associate. They specifically argue that they may constitutionally prevent the Union’s spending a part of their required service fees to contribute to political candidates and to express political views unrelated to its duties as exclusive bargaining representative.

431 U.S. at 234 (citations omitted).  The Court agreed:

We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective bargaining representative.  Rather, the Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.

431 U.S. at 235-36.  Summarizing the decision, the Abood Court wrote:

To compel employees financially to support their collective bargaining representative has an impact upon their First Amendment interests. An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative. His moral or religious views about the desirability of abortion may not square with the union’s policy in negotiating a medical benefits plan. One individual might disagree with a union policy of negotiating limits on the right to strike, believing that to be the road to serfdom for the working class, while another might have economic or political objections to unionism itself. An employee might object to the union’s wage policy because it violates guidelines designed to limit inflation, or might object to the union’s seeking a clause in the collective bargaining agreement proscribing racial discrimination. The examples could be multiplied. To be required to help finance the union as a collective bargaining agent might well be thought, therefore, to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.  But the judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.

431 U.S. at 222. Read that last line again: “the judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.”

In other words, the Court deferred to Congress’s determination that collective bargaining and the union’s ability to conduct collective bargaining effectively are worth some amount of impinging on workers’ First Amendment rights.

Is Abood a Dead Law Walking?

Abood has many problems, and appears poised for reversal.  In the first place, Friedrichs is all but indistinguishable from Abood.  A group of teachers argue that they should not be required to contribute to the public union at all, including both for collective bargaining and for anything else.  This is not an instance where won of the parties is trying to carve out a nitsche, exception or nuance, but a direct attack on the continued viability of the rule itself.  In their Brief For The Petitioners, the plaintiff teachers explicitly ask that Abood be overturned in their:

The logic and reasoning of this Court’s decisions have shattered the legal foundation of its approval of such compulsion in Abood v. Detroit Board of Education, 431 U.S. 209 (1977) — a decision that was questionable from the start, as Justice Powell argued persuasively in his separate opinion.  Id. at 245 (Powell, J., concurring in the judgment) (describing the majority’s opinion as “unsupported by either precedent or reason”). The Court should now discard that jurisprudential outlier.

This frontal assault is why Friedrichs poses such a threat to unions and union supporters.  Just the fact that the Court agreed to hear the case is an ominous sign, since the Court does not take cases without either a significant and new issue, or a substantive chance of changing current law.  The Supreme Court’s website notes that the Court receives about 10,000 petitions for a writ of certiorari (requests that the Court hear a case on its discretion) per year, and accepts 75-80, or just .8%.

In addition, decisions in recent public union cases have been increasingly skeptical.  Just two years ago in Harris v. Quinn, the Court intimated that Abood was on shakey ground.  According to Dr. John Eastman of Chapman University’s Fowler School of Law and the Claremont Institute’s Center for Constitutional Jurisprudence:

Harris v. Quinn has at least made Abood a ghoul, one of the walking dead.  At issue was whether in-home care givers could be compelled to contribute to the public employee union coffers – the annual amount in Illinois is about $3.6 million! – merely because they were paid out of state Medicaid funds (made available because Illinois found it much more cost effective to pay for in-home care than to pay for care in a medical facility).    By the same five-to-four line-up that divided over the First Amendment language in Knox, the Harris Court held that Abood could not be expanded to cover not just “full-fledged public employees” but also those who are “deemed to be public employees solely for the purpose of unionization and the collection of an agency fee.”  And in the process, the Court hammered another big nail in the coffin of Abood, calling its “analysis questionable on several grounds,” including some that “have become more evident or troubling in the years since” Abood was decided. . . .

“A union’s status as exclusive bargaining agent and the right to collect an agency fee from non-members are not inextricably linked,” noted the Court.  Moreover, a compulsory “agency-fee provision cannot be sustained unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join,” and “[n]o such showing has been made.”  These two statements cut right to the heart of arguments that have previously been relied upon to uphold compulsory union dues.  The ghoul is left crawling along on stubs.

Richard A. Epstein (Senior Fellow at the Hoover Institution and Professor of Law at NYU) takes it the next step, writing that the union is not only unable to make a showing that it can achieve its goals from willing donors alone, but that the union is affirmatively destructive to some employees.  Prof. Epstein  writes:

[some employees] correctly perceive that they are worse off with union representation. Thus excellent teachers often favor merit raises. They oppose seniority preferences that tie wages and job protection to years of service. They bridle under rules that give weak or incompetent teachers outsized protection against dismissal. Yet these unhappy teachers cannot quit because they know that all other public school systems are burdened with similar rules. It is therefore perfectly sensible for them to prefer no union at all to one that gives them union representation free of charge.

(Emphasis in the original.)  Professor Epstein’s preferred outcome in Friedrichs (and presumably Professor Eastman’s as well), is as weighty as it is simple:

In an ideal world, the Supreme Court would use Friedrichs to dismantle mandatory collective bargaining root and branch. But short of that, what the Court should do, and do unanimously, is set dissenting workers free from union domination by striking down all agency shop provisions.

I do not see the Court unwinding mandatory collective bargaining altogether.  At least not in Friedrichs, where it is so unnecessary to the outcome.

Instead, I expect the Court to hold that mandatory contributions to a public union by non-members of the collective bargaining unit are unconstitutional.  Whether such mandatory contributions are viable in private-sector unions and whether mandatory collective bargaining itself pass muster will wait for case more on point.