Supreme Court

Today at SCOTUS: Public-Sector Unions, Mandatory Unions Fees, and the First Amendment

Can the government compel non-members to pay mandatory union fees?

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In 1977 the U.S. Supreme Court ruled that state governments may force public-school teachers to pay mandatory union fees, as a condition of employment, regardless of whether or not those teachers are union members. Known as an "agency shop arrangement," this scheme was justified by the Court in Abood v. Detroit Board of Education on the grounds that the government has a lawful interest in preventing non-members from "free riding" on the union's collective-bargaining efforts. That decision, which provided a significant boon to public-sector unions around the country, has been in place ever since.

Today the Supreme Court will hear oral arguments in a case that asks whether Abood should be overruled. Friedrichs v. California Teachers Association centers on a Golden State public-school teacher named Rebecca Friedrichs who refuses to join the teachers union and objects, on First Amendment grounds, to the fact that she is forced to provide financial support to the very union whose agenda she has explicitly disavowed. "Just as the government cannot compel political speech or association generally," Friedrichs and her lawyers told the Supreme Court, "it cannot mandate political speech or association as a condition of employment."

In its 1977 Abood ruling, the Court grappled with the idea that "compel[ling] employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests." But in the end the Court decided that this "impact" did not rise to the level of a genuine First Amendment infringement when it came to public-sector collective bargaining.

Credit: Public Domain

In recent years, however, the Court has signaled a more critical attitude towards Abood and its impact on the First Amendment. In 2012's Knox v. Service Employees International Union, Local 1000, for example, the Court invalidated the SEIU's "indefensible" imposition of a one-time special fee without giving non-members advance notice and the opportunity to object (as is standard practice in agency shop arrangements). As Justice Samuel Alito held for the Court, "procedures for collecting fees from nonmembers must be carefully tailored to minimize impingement on First Amendment rights, and the procedure used in this case cannot possibly be considered to have met that standard."

Two years later, in Harris v. Quinn, the Court went further, refusing to allow the state of Illinois to treat at-home personal health care assistants as government workers subject to Abood's agency-shop fee requirements. "Because of Abood's questionable foundations, and because the personal assistants are quite different from full-fledged public employees, we refuse to extend Abood to the new situation now before us," Justice Alito again wrote for the Court.

Needless to say, Justice Alito's reference to "Abood's questionable foundations" did not sit well with supporters of public-sector unionism. In her Harris dissent, for example, Justice Elena Kagan faulted Alito for "taking potshots at Abood." She also faulted the petitioners in that case for asking the Court to consider "overruling Abood and thus imposing a right-to-work regime for all government employees."

Which brings us back to the present litigation. In oral arguments today in Friedrichs v. California Teachers Association, the Supreme Court will hear a case that places Abood itself squarely on the chopping block. Was Justice Kagan right to worry about "right-to-work"? We'll soon find out.

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  1. I’m still puzzled by the very notion of public sector unions. Why would government workers need a union? Is not the government the source of all wisdom and all fairness to workers?

    1. Well how else do you expect to launder all that money the teachers are supposed to kick back to their democrat benefactor’s campaigns? Gotta have some one to crack the whip and keep it organized.

    2. The part of public sector unions that puzzles me. . .

      When a business negotiates with a private sector union, they’re negotiating with their own resources – so there is an incentive to act in a fiscally and morally responsible manner.

      This is not so with public sector unions. In the public sector, the resources in question are stolen property. When one goes on a spending spree with stolen money – rather than that which is your rightfully-owned property – the incentive to act in a fiscally or morally responsible manner evaporates like a drop of spit on a hot griddle.

      (but we can’t be trusted to govern ourselves, right?)

  2. In her Harris dissent, for example, Justice Elena Kagan faulted Alito for “taking potshots at Abood.”

    I’m sure she did.

    1. Did she actually use thecolloquialism “potshots” in a Supreme Court decision?

      The English Language is dying a slow and painful death.

  3. While it may be true that there is a ‘free-rider’ argument for taking advantage of collective bargaining contracts negotiated by unions, there is no argument for paying unions for all the political speech they generate, which looks like most of what they do. The latter is definitely an infringement on anyone’s First Amendment rights.

    Leave the choice to the person whether they want to take advantage of the collective bargaining contract and pay the union the part of the fee that would go to paying the negotiators. But don’t force them and in addition make them pay for the unions’ political speech.

    1. I think part of this lady’s argument is that even the collective bargaining itself takes on a political tone, and she doesn’t agree with many of the things they are negotiating for.

      1. The collective bargaining is necessarily political, because employment by the state is necessary political.

        1. It’s open bribery.

        2. There is no difference between a pubsec union negotiatiing, and a lobbyist asking for favors. None.

    2. What I don’t understand is why the union can’t just draw up a contract that only applies the pay and benefits to union members. Oh, right, because they couldn’t forcibly extract money from other employees that way.

      1. Which is what this is all about.

    3. The free rider argument is nonsense in any light though. If I turn the heat up in my apartment really high during the winter because I like it really warm, but everyone else in my building is stingy and likes to keep save money and keep it cool, then I am helping to warm up their apartments by running my heat so often. That doesn’t give a right to force them to pay for part of my bill or try to evict them myself if they don’t. Doing someone an unrequested favor doesn’t justify stealing from. If the free rider argument had any merit, every business in the country could justifiably break into any customer’s house to “steal” back the consumer surplus they took.

      Union’s don’t have a right to forcibly extract the consumer surplus anymore than Walmart does.

      Sorry for ranting. I just hate the ‘free rider’ argument with a passion. It’s on of the dumbest things to penetrate the minds of seemingly sane people.

  4. This isn’t just about public sector unions. I’ve never been part of a union or been around that I didn’t object to its’ political machinations. Unions are supposed to be about the proletariat and not the politicians. Yet, all unions I have ever seen care more about pumping out political actions than standing up for its’ members.

    And unions and union-supporters always sit agape and wonder why people are so hostile to them, often saying things like “Why do people vote against their own self interest?!” Perhaps they should realize that the self-interest of the union members is about their employer and not whatever political pockets the union wants to fill to make the union (and not the union members) more powerful.

    1. Or perhaps they can see beyond the end of their noses and realize that immediate gratification isn’t the best alternative; see, oh, General Motors for example. Or the city of Detroit.

  5. the government has a lawful interest in preventing non-members from “free riding” on the union’s collective-bargaining efforts

    Waitwaitwait

    They ruled that the government has a lawful interest in jacking up teacher compensation, harming the taxpayers?

    Actually, never mind, I’m not that surprised.

    1. the government has a lawful interest in preventing non-members from “free riding” on the union’s collective-bargaining efforts

      I don’t get that at all. What, exactly, is the State’s interest in whether a private citizen free rides on the efforts of a private organization?

      1. Look, the Supreme Court ruled, so it’s just like the word of Mohammed and therefore sacred.

    2. “the government has a lawful interest in preventing non-members from “free riding” on the union’s collective-bargaining efforts”

      If free-riding were of gov’t interest, the judicial branch would have to be ten times its current size to keep up.

      1. Every time a customer buys something for $5 at walmart that confers to the customer $6 worth of value, the government has a lawful interest in hunting that leech down and forcing him at gunpoint to give that $1 back to the Waltons.

      2. Yeah it would have to indict all members of the Democrat Party, most of the members of the Republican Party, and my douchebag neighbor who mooches off my wifi.

    3. “the government has a lawful interest in preventing non-taxpayers from “free riding” on the taxpayers’ efforts”

      FIXED

  6. Public employee unions baffle me. Taxpayers pay the government money. The government pays these government workers. The workers immediately pay the government back in the form of taxes. The workers are then required to give money to the union, which in turn gives that money directly to politicians, who also happen to be paid by the government with our money. Public sector unions are a bunch of people exchanging money in convoluted ways that all ends up in the same place, all in the name of protecting government workers from themselves, the government.

  7. ” imposing a right-to-work regime”

    Okay I legitimately laughed at that. Freedom is a “regime” now.

  8. the government has a lawful interest in preventing non-members from “free riding” on the union’s collective-bargaining efforts….

    the government cannot compel political speech or association generally

    I’m reminded of the poem:

    Oh, what a tangled web we weave
    when first we practice to deceive increase-the-government’s-power!

  9. The idea of a public sector union being in any way held in check is important. They are set up to perpetually tip negotiations to the side of the unions. Union members will negotiate furiously for benefits, gov managers will fight less furiously as they aren’t spending their own money or having to worry about solvency.

    It’s too easy for these public sector unions to set themselves up as leaches. Then of course the private sector unions look at gov benefit packages and say, “hey, we deserve that too.”

    1. This is why past liberals such as FDR realized that public-employee unions were a bad idea. Such unions are inherently keptocratic.

  10. SCOTUS should rule in favor of Rebecca Friedrichs.

    Because she is hot.

    1. I’ll bet Crusty would approve this message.

    2. As firmly established by legal precedent in the 1988 SCOTUS decision for Martinez vs. Hot Girl.

    3. She is quite milfy… And it sounds like she’s a smart lady, to boot.

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  12. When the right-to-work cause won in Wisconsin, Indiana, and Michigan a few years back, the unions argued against it on the grounds that non-members were free riders. But others pointed out that the unions themselves had insisted on requiring employers to give non-members the same contracts. In other words, they insisted on the very provision they complained would then allow non-members to be free riders — a perfect example of chutzpah.

    1. Does this mean they are now opposing prevailing-wage laws?

  13. the problem is that it isn’t bargaining if both parties are on the same side of the table and the people paying the tab are excluded.

  14. My first job out of High School was at St Paul and over the next 5 years Iearned so very much. Seeing the hospital torn down tears a small piece of my heart out. The Daughters of Charity and the doctors and staff of St Paul Hospital will always be with me.
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  15. Well, Friedrichs is way hotter than Abood. Case closed, where my gavel?

  16. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go to tech tab for work detail.

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  18. Unions, the original PAC’s.

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  21. My first job out of High School was at St Paul and over the next 5 years Iearned so very much. Seeing the hospital torn down tears a small piece of my heart out. The Daughters of Charity and the doctors and staff of St Paul Hospital will always be with me.
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