New Threat To Public Sector Labor Unions, Ctd


Last June I wrote a post about a case that the U.S. Supreme Court had agreed to hear, which poses a serious threat to the viability of public sector labor unions. The case, Friedrichs v. California Teachers Association, concerns whether public employees can be forced to pay fees for the non-political activities of a labor union. I wrote:

By agreeing to review that case, the Supreme Court has accepted the petitioners’ invitation to consider overruling the court’s 1977 decision in Abood v. Detroit Education Association, which answered that question in the affirmative.

More specifically, Abood held that a public employee has a First Amendment right to refuse to support a union’s political activities, but still must pay an “agency fee,” which covers the union’s non-political activities, such as collective bargaining.  This distinction prevents unionized employees from “free riding,” i.e., from enjoying the benefits of the collective bargaining process without contributing to the costs thereof.

The petitioners in Friederichs argue, however, that all public sector labor union activity is inherently political and that a public employee has a First Amendment right not be compelled to support that activity if they object to it.  The Supreme Court’s decision to hear the Friederichs case suggests that at least four justices are receptive to that argument, which could be devastating to public labor unions.

The case has been scheduled for oral argument before the Supreme Court on January 11, 2016. The Obama administration has filed an amicus brief in support of the unions, asking the Supreme Court to reaffirm Abood. [I share the administration’s view that Abood should be reaffirmed.]

This is a VERY important case, but it has been flying under the media’s radar screen. Click here to read more about the case over at SCOTUSblog. And click here for an insightful discussion about the threat an adverse decision poses to our democracy in general.

2 Comments on “New Threat To Public Sector Labor Unions, Ctd”

  1. Suzanne Bates says:

    Can you explain why you think Abood should be reaffirmed? Why should teachers and other employees be forced to pay union dues when they disagree with union behavior and activities? I’ve heard Rebecca Friedrichs speak, and she has some very legitimate complaints about her union. Right now, people like her have no recourse. She tried working from within, and it didn’t work. Unions have got to learn to be more responsive to their membership, and under the current monopoly, forced-dues system we have in place, that doesn’t happen.

    • Dan Klau says:

      Dear Suzanne, apologies for the delay in responding to your comment. I’m happy to explain my position.

      First, I begin with the premise that unions in general, both private and public, are a necessary counterbalance to large conglomerations of power in the private and public sectors. I think history has demonstrated that workers, when unable to bargain collectively, are too often subject to abuse and arbitrary exercises of power by employers. Now, I know some people argue that things have changed so much over the past century that unions are no longer necessary. I am familiar with the arguments, but I do not agree with them. In short, I believe unions are still necessary.

      Second, given my acceptance of this premise, a legal ruling that allows individuals who are represented by unions and who enjoy the benefits of such representation to avoid paying fees to support the collective bargaining process creates a huge free-rider problem that could make public sector unions financially non-viable. That problem is central to the Abood decision and it is one that I find persuasive.

      Third, I understand the complaints raised by many public employees who are required to pay agency fees even though they disagree with union activities, policies, etc. That is a real problem. But society does not allow citizens to refuse to pay taxes because they disagree with the policies and positions of the government that happens to be in power at a particular point in time. I know that the analogy is far from perfect. I offer it only to make the point that sometimes people who disagree with the majority position in an organization can’t opt out of contributing financially to the organization, while continuing to enjoy the benefits that the organization bestows upon them with respect to wages, work conditions, etc.

      Fourth, I have a sense that many people who would like to see Abood overturned really just don’t like public sector unions generally and hope that overturning Abood will lead to their eventual demise. If my sense is correct, I think the more honest approach is to candidly argue for an end to public sector collective bargaining, rather than make a legal argument that there is a First Amendment right to refuse to pay fees that support collective bargaining, which, if accepted, could be financially ruinous for the unions. In other words, opponents of public sector labor unions should explain why collective bargaining in the public sector is no longer necessary, is “bad,” etc., rather than trying to bring about the demise of the unions through a back-door legal argument that has grave implications for the continued financial viability of public sector unions.

      Lest my response be interpreted as a full-throated endorsement of public sector labor unions, let me say that I have significant concerns about collective bargaining in the public sector. (That’s a post for another day.) I just don’t think the best way to address those concerns is by making it impossible for unions to survive financially by creating a serious free-rider problem.

      Thanks for your inquiry. I hope my response is useful, even if not ultimately persuasive!

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