Time to Drive a Stake Through the Heart of Mandatory Dues

Let me start with a disclaimer. I was once a member of a union—albeit involuntarily. During college, I responded to Southwestern Bell’s ad for a part-time, 20-hour-a-week graveyard shift job designing Yellow Pages advertisements. I was offered the position, but was required to join the union as a condition of my employment. Had I been a law student rather than an undergraduate at the time, I might have realized that the requirement was illegal under the Supreme Court’s decision in National Labor Relations Board v. General Motors (1963) two decades earlier. Even then, I suspect I would have been required to pay an “agency fee” of roughly the same amount as the union dues, and perhaps the fine print on the personnel paperwork afforded me that option.

My two eight-hour shifts plus a four-hour shift each week earned me some much-needed funds for tuition, room and board, and other expenses. I was diligent in my work; too diligent, in fact, because my productivity contrasted with that of others in the department. Within a few months, I was told to slow down because I was making others look bad, and a few months after that the part-time positions at the company (mine and a few others), were terminated. I was told that I could apply (with no guarantees) for a full-time position, something that the company knew was not possible, given my college workload. When I complained that the company had breached my employment contract (it had a fixed one-year, renewable term, if I recall correctly), I was told to take the matter up with my union representative.

When I did, things got interesting. It turned out it was the union that had pressured the company to eliminate my part-time position. I also learned that, pursuant to the terms of the collective bargaining agreement, I had no recourse against the company for the breach-of-contract claim other than by having the union file a grievance on my behalf, which it refused to do. Again, had I been a lawyer (or even a law student) at the time, I might have found some legal avenue around the union barrier; but I was not, and I did not.

In any case, when someone tells me agency fees are necessary to prevent non-union members from “free-riding” on the collective bargaining efforts of the union—efforts that supposedly benefit non-members as well as members—I have good reason to disagree.

These personal experiences show something pretty obvious: Because union members are not by any means homogeneous in their interests, union representation will often benefit some at the expense of others. Moreover, when someone tells me that the union incurs costs on my behalf by providing the mechanism by which grievances against the company can be heard, and that it is therefore appropriate for me to bear some of those costs whether I am a dues-paying member or an agency fee-paying non-member, I get a bit angry. The union, in my case, was not just hostile to my breach-of-contract claim but the cause of it. The “procedure” it had bargained for was one that prevented me from pressing that claim.

For unions to put in place such peculiar arrangements, and to do so using resources they’ve collected from rank-and-file-workers, and to insist to those workers that they are acting for those workers’ own good—well, audacity doesn’t even seem to cover it. As Kevin Bacon would say, “Thank you, sir, may I have another?”

Keep in mind, I was in a private sector union. My trouble dealt only with one an aspect of existing collective bargaining law that is largely unquestioned—that of assessing agency fees against non-union members to cover their “fair share” of the union’s collective bargaining efforts. I did not have occasion to challenge the portion of the agency fee that went to political causes, with which I undoubtedly would have disagreed. Truth be told, the “accounting” of those fees by union leaders has been pretty close to, if not outright crossing, the fraud line. I recall learning a few years back that one of the nation’s largest and most politically active unions had reported “zero” in political expenditures on its federal tax return. Zero. Really. With a straight face, even.

As serious as the problem is for private sector unions, it is compounded exponentially in the public sector union context, where even legitimate collective bargaining is an inherently political activity.

Whether compulsory dues in the public sector context are constitutionally permissible is the issue that the Supreme Court will now confront in Friedrichs v. California Teachers Association. Or rather, I should say, will confront again. The Court held back in 1977 that they were permissible, in the case of Abood v. Detroit Board of Education. It did so without much analysis, however, and as Michael Toth notes in his Liberty Forum essay, my view is that the decision in Harris v. Quinn two terms ago all but overruled Abood, leaving it no more than “a ghoul, one of the walking dead.”

So let us consider whether Abood deserves to have a stake driven through its heart once and for all.

Some history is helpful. As Amy Ridenour reminded us a few years back, George Meany—for 16 years head of the American Federation of Labor, then head of the AFL-CIO for a quarter century after the AFL merged with the Congress of Industrial Organizations—opposed allowing public employees to unionize. As Meany wrote on the eve of the historic merger between the AFL and the CIO, “nothing could be further from the truth” than the claim that organized labor was in favor of big government. “The main function of American trade unions is collective bargaining,” he explained, and “it is impossible to bargain collectively with the government.”

Another staunch supporter of private sector unions, President Franklin D. Roosevelt, likewise believed that “the process of collective bargaining . . . cannot be transplanted into the public service.” FDR, in a 1937 letter to Luther Steward, president of the National Federation of Federal Employees, wrote: “The very nature and purpose of Government” makes collective bargaining “impossible” because “administrative officials” cannot “bind the employer in mutual discussions with Government employee organizations.”

“The employer,” noted FDR, “is the whole people, who speak by means of laws enacted by their representatives in Congress.”

President Roosevelt was particularly harsh toward what he described as the “militant tactic” of a public employee strike, stating that it has “no place in the functions of any organization of Government employees,” upon whom “rests the obligation to serve the whole people.” A strike of public employees manifests “nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied,” Roosevelt added. “Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable.”

There is great truth and insight in Meany’s and Roosevelt’s views, but history has demonstrated that they both erred in one significant respect. Turns out that it is not “impossible” to have collective bargaining in the public sector, as they both asserted, only impossible to do so legitimately, without threatening the republican (small “r”) nature of our governing institutions.

Roosevelt believed that government officials could not “bind” the government; only the people could do that, acting through their elected representatives in the legislature. But as we have seen, government officials have purported to “bind” government in response to union demands in all sorts of ways, and the awesome political power that government unions have been able to bring to bear in electoral politics has insured that whatever ratification by the legislature was necessary was happily given, the legislatures having long since been captured by the lure of union campaign spending.

At bottom, every single subject on which public sector unions collectively bargain is inherently political. How much public school teachers, or fire fighters, or sanitation workers should receive in wages and benefits is political, because every dime spent there requires a reallocation of resources from somewhere else—either from other government programs, or from the taxpayers via increased taxes, or from future taxpayers via contractual liabilities that are not funded out of current revenues. How many hours a shift should be, or how large a class of students should be, or how the public employees are to be evaluated, promoted, reassigned, or protected against termination, are all policy judgments that are inherently political. Even a public employee union that represents every employee in every program in state government pushes a policy agenda when it bargains collectively for more salary and benefits, in favor of larger rather than smaller government, higher rather than lower taxes.

Abood held that a union cannot force non-members to support its political and ideological expenditures that are unrelated to collective bargaining, but that distinction is really nonsensical in the public employee union context. Some unionists seem ready to acknowledge as much, and  — once again, the audacity is breathtaking—have even tried to use this blurred distinction in their favor. The unions on the losing side of the Supreme Court’s decision in Knox v. SEIU Local 1000 (2012) argued that because all public policy affects public employee union members, the overt political activity of the unions—including campaign support for ballot measures—was simply “lobbying . . . the electorate.” As such, they asserted that their campaign spending was related to collective bargaining and could therefore be assessed against non-union employees via compulsory union dues.

The Court rejected that argument in Knox, with a strong opinion by Justice Alito that went so far as to question whether the existing compulsory dues system violated the First Amendment.

“By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate,” noted the Court. [Emphasis added] That line drew a strident dissent by four justices in two separate opinions (including by the two justices who otherwise agreed with the judgment in the case), but it was clear to Court observers across the ideological spectrum that the pro-public-union Abood regime was in serious trouble.

The Court’s decision in Harris v. Quinn two years later left Abood on even shakier ground.  Justice Alito’s opinion for the Court called Abood’s “analysis questionable on several grounds,” including some that have “become more evident or troubling in the years since” Abood was decided. The decision in Abood “failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends,” Justice Alito added, noting that that decision “does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures” as either chargeable or nonchargeable.

It is against that backdrop, with Justice Alito (on behalf of a five-justice majority) channeling the ghosts of Franklin Roosevelt and George Meany, that the Court will consider next term the case of Rebecca Friedrichs against the California Teachers Association and a slew of affiliated public employee unions. Mrs. Friedrichs is a public school teacher. California law requires that, as a teacher working in an agency-shop school (which is just about every public school teacher in the state), she contribute to the California Teachers Association, which is the National Education Association’s state affiliate, as well as to the NEA itself. Collectively, the teachers’  unions amass hundreds of millions of dollars annually from this compulsory dues system, monies that flow almost entirely into one of the two major political parties in this country.  Not surprisingly, public employees who, like Mrs. Friedrichs, have a different ideological bent are not too keen on funding the efforts of their political opponents.

While, technically, Mrs. Friedrichs can request the return of that share of her mandatory fee that goes to the more overtly political activities of the unions, opting out of that portion of the fees is a deliberately cumbersome process. Even when the opt-out option is successfully exercised, the union’s own determination of what constitutes “chargeable” expenses from which one cannot opt out (rather than “non-chargeable” political expenditures, from which one can opt out) is, shall we say, overly generous. As noted above, the unions could almost argue—indeed in at least one case they have argued—that given the nature of public employment, there is really no such thing as a political expense that is not a “chargeable” collective bargaining expense.

The situation confronted by Mrs. Friedrichs and countless other public servants is simply intolerable in our republican (again, small “r”) form of government. And the massive amount of money collected through a practice that is patently offensive to the free speech and freedom-of-association rights protected by the First Amendment has skewed the democratic process (small “d”) for far too long. It is time for the Court to drive that stake it has been whittling in Knox and Harris right through the heart of Abood, so that when Mrs. Friedrichs teaches her students about the fundamental principles of freedom on which our government rests, she can speak from the authority of her own experience.

John C. Eastman

John C. Eastman is the Henry Salvatori Professor of Law and Community Service and former Dean at the Chapman University Dale E. Fowler School of Law. He is also the founding director of the Center for Constitutional Jurisprudence, the public interest law arm of the Claremont Institute, in which capacity he has participated as amicus curiae in the Knox v. SEIU and Harris v. Quinn cases discussed in this article.

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