Tag: right to work

The End of Forced Union Dues?

Defenders of the status quo in education have long used lawsuits to protect themselves from competition and force state legislatures to increase funding. Lately, rather than merely play legal defense, some education reformers have turned to the courts to push reform. In some cases, the long-term prospects of positive reform through litigation are slim, even when the court’s ruling is favorable.

However, one lawsuit currently making its way through the court system has the potential to remove a major obstacle to reform: compulsory union dues. In 19 states, would-be government school teachers are forced either to join the teachers union or to remain a non-member but pays dues anyway—sometimes more than $1,000 per year.

The unions contend that these compulsory dues are necessary to overcome the free rider problem (non-union members may benefit from the collectively-bargained wages and benefits without contributing to the union), but plaintiffs in Friedrichs v. California Teachers Association point out that numerous organizations engage in activities (e.g. – lobbying) that benefit members and non-members alike without giving such organizations the right to coerce non-members to pay. That’s especially true when the individuals who supposedly benefit actually disagree with the position of the organization. Indeed, the plaintiffs argue that the compulsory dues violate their First Amendment rights because collective bargaining is inherently political:

Current federal law allows union workers to opt out of the political portion of union dues — for California teachers that usually amounts to between 30 and 40 percent of the total dues automatically taken from their salaries each year — but in closed-shop states such as California, workers cannot opt out of the rest of the dues, predominantly designated for collective bargaining. However, the plaintiffs argue that collective bargaining is inherently political, involving such debated issues as school vouchers and teacher tenure.

“Since my first years of teaching, I’ve been bothered by the fact that a large portion of my mandatory dues goes to pay for political endeavors of a union whose political positions have nothing to do with my job and have nothing to do with improving education for me, for my students, or for their parents,” Friedrichs tells me. “In fact, often these policies have negative effects.” 

The legal justification for compulsory union dues rests primarily on a 1977 U.S. Supreme Court decision, Abood v. Detroit Board of Education. But as Andy Smarick noted last week, the recent majority opinion in Harris v. Quinn displayed a willingness to revisit and perhaps overturn Abood:

The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then. 

For example:

Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector. In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector. 

Justice Alito also wrote that “preventing nonmembers from freeriding on the union’s efforts” is a rationale “generally insufficient to overcome First Amendment objections.”

The Friedrichs case, resting as it does on a First Amendment objection based on the premise the collective bargaining in the public sector is inherently political, appears to match perfectly the majority’s objections to Abood in Harris. It very well may spell the end of compulsory public sector union dues.

Against Forced Unionization

The Supreme Court has long applied exacting scrutiny to limitations placed on the freedoms of speech and association. Unfortunately, the Court has not extended such protection to those forcibly unionized.

In Abood v. Detroit Board of Education (1977), the Court accepted that promoting “labor peace”—limiting the number of competing workplace interests that bargain over the conditions of employment—was an interest so compelling that a state may mandate its employees’ association with a labor union, forcing them to subsidize that union’s speech and submit to it as their exclusive representative for negotiating with the government regarding their employment. Since that time, more than a dozen states have forcibly unionized independent contractors who are paid through Medicaid.

In 2003, Illinois forced its home healthcare workers to join and pay dues to the Service Employees International Union as their sole representative before the state. Workers subject to this coerced association have challenged the law as a violation of their First Amendment rights and the case is now before the Supreme Court. Cato, joined by the National Federation of Independent Business, has filed an amicus brief in support. We argue that Abood was wrong when it was decided and should now be overturned. Abood simply assumed without analysis that the Supreme Court had already recognized “labor peace” as a “compelling interest.”

But the cases Abood relied on only regarded “labor peace” as justifying Congress’s exercise of its Commerce Clause authority to regulate labor relations, not as a basis to override workers’ First Amendment rights—and a Commerce Clause analysis is logically irrelevant to the First Amendment. Furthermore, Abood turns the logic of the First Amendment on its head: Unions are designated as the exclusive representatives of those employees that are compelled to support them for the sole purpose of suppressing the speech of dissenting employees, but under Abood it is exactly this suppression of speech that validates coerced association under the First Amendment. Such logic can’t be reconciled with the Court’s strict scrutiny of laws in other First Amendment contexts.

Even if the Court chooses to maintain Abood, it should reject the coercive programs at issue here because they’re unsupported by Abood’s rationale and serve no other compelling state interest. The homecare workers subject to the law aren’t employed by the state. Although they’re paid through a Medicaid disbursal, every crucial aspect of the employment relationship, including workplace conditions, hiring, and firing, is determined by the individual cared-for by the worker. The union is thus limited to petitioning the state for greater pay and benefits. Given this limited scope, there can be no serious claim that SEIU’s exclusive representation of some workers has freed Illinois from any great burden due to “conflicting demands” from other workers. Whatever Abood’s long-term vitality, that flawed case doesn’t support the compelled unionization of workers who are in no way managed by the state.

The Supreme Court will hear Harris v. Quinn on January 21.

This blogpost was co-authored by Cato legal associate Lauren Barlow.

Wednesday Links

  • Please join us on Thursday, April 7 at 2:00 p.m. ET for “The Economic Impact of Government Spending,” featuring Sen. Bob Corker (R-TN), Sen. Mike Lee (R-UT), Rep. Kevin Brady (R-TX), former Sen. Phil Gramm, former IMF director of fiscal affairs department Vito Tanzi, and Ohio University economist and AEI adjunct scholar Richard Vedder. We encourage you to attend in person, but if you cannot, you can tune in online at our new live events hub.
  • The last time we saw a green energy economy was in the 13th century.
  • This isn’t quite what we meant by “defense spending.” For a refresher, see this itemized list of proposed cuts that could save taxpayers $150 billion annually.
  • Prosperity reigns where taxes are low and right to work prevails.”
  • In case you missed it last Friday, check out Cato director of financial regulation studies Mark A. Calabria discussing the Federal Reserve on FOX News’s Glenn Beck show: