Do you want the choice to support a labor union, or not?

Do you want the choice to support a labor union, or not?

In a free society, should public employees be forced to support a labor union's political activities contrary to their own beliefs and their own interests?

WASHINGTON, Jan. 21, 2016 — Our society holds freedom of speech and freedom of association dear, except in cases when we don’t.

One such case is now before the U.S. Supreme Court. Friedrichs v. California pits 10 California teachers against the Teachers Association. They are challenging a rule that says non-members must pay “fair share fees” to the union to cover the costs of collective bargaining. According to the plaintiffs, the rule violates their First Amendment right to free speech; they are forced to subsidize an organization whose politics they reject.

One of the plaintiffs is Harlan Elrich, who pays $970 a year to the labor union. He teaches high school math and says that the system doesn’t add up. “I get to choose what movie I want to go to. I get to choose what gym I want to join,” he says. Why, he asks, should he not have the same right about whether to support a union?

Under California law, which is similar to laws in more than 20 other states, public employees who choose not to join unions must pay a “fair-share service fee,” also known as an “agency fee,” which is typically equivalent to members’ dues. The fees are meant to pay for collective bargaining activities, including “the cost of lobbying activities.”

In Abood v. Detroit Board of Education (1977), the Supreme Court ruled that such fees are constitutional. Writing for the majority, Justice Potter Stewart said, “To compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests … But such interference as exists is constitutionally justified” to prevent free-riding and to ensure “labor peace.” What crossed a constitutional line, he declared, was forcing objecting workers to pay for “ideological activities unrelated to collective bargaining.”

Elrich says he receives a refund of between $350 and $400 a year based on the union’s determination of what part of its activities are political. But he and the other plaintiffs say that everything the union does in negotiations with the government is political and that Abood should be overturned.

“In this era of broken municipal budgets and a national crisis in public education,” a brief for the plaintiffs said, “it is difficult to imagine more politically charged issues than how much money local government should devote to public employees, or what policies public schools should adopt to best educate children. Yet California and more than 20 other states compel millions of public employees to pay hundreds of millions of dollars to fund a very specific viewpoint on these pressing public questions.”

Karen Cuen, an elementary school music teacher in Chino Hills, California, and a plaintiff in the suit, gave this example: “I disagree with seniority-based lay-offs and seniority-based school assignments,” positions the union supports.

The National Education Association (NEA), of which the California union is an affiliate, gets a portion of nonmember fees. The NEA endorses presidential candidates, always Democrats. Government workers’ unions provided much of organized labor’s estimated $1.7 billion in political spending in 2012. In the 2014 off-year election, the NEA was the third largest political spender, giving almost entirely to Democratic candidates. In 36 states, from 2000 through 2009, teachers unions spent more on state elections than the combined spending of all business associations.

With Harris v. Quinn (2014), the Supreme Court stopped just short of overruling its Abood decision. It ruled only that the home health care aides who had brought the suit did not have to pay union fees because they were not full-fledged government workers. There is every indication that it is inclined to support the plaintiffs’ free speech argument in Friedrichs. Collective bargaining, Justice Anthony Kennedy said, is inherently political when the government is the employer. “Many critical points are matters of public concern,” he said, mentioning issues like tenure, merit pay, promotion and classroom size.

Justice Antonin Scalia said that the consequences for public unions would not be nearly as negative as the unions proclaim if the challengers prevail. He asked, “Why do you think that the union would not survive without these fees charged to nonmembers of the union? Federal employee unions do not charge agency fees to nonmembers and they seem to survive. Indeed, they prosper. The problem is that it is not the same as a private employer, that what is bargained for is, in all cases, a matter of public interest. And that changes the situation.”

In oral arguments before the court, California Solicitor General Edward C. DuMont said that the government’s interests outweighed free speech considerations. “We need to be able to run our workplaces,” he said. He added that the workers remained free to speak out in other settings.

Justice Kennedy responded that if a worker “is required to pay $500 for someone to espouse a belief that he doesn’t share, it would be small comfort that he is now free to go out and argue against it. That means he has to spend another $500 so that it balances out. That makes no sense.”

The Obama administration is defending the unions and downplays the free speech question at the heart of the case. In past cases, the Supreme Court has twice suggested that the First Amendment bars forcing government workers to make payments to unions. In one of the cases, Justice Samuel A. Alito Jr. wrote, “Because a public sector union takes many positions during collective bargaining that have powerful political and civic consequences, the compulsory fees constitute a form of compelled speech and association that imposes significant infringements on First Amendment rights. We do not revisit today whether the court’s former cases have given adequate recognition to the critical First Amendment rights at stake.”

The new case presents just that challenge. Some of the justices seem less concerned with maintaining free speech rights than with making certain that the influence of public employee unions is not diminished. Justice Stephen Breyer suggested that the plaintiffs’ complaint is “pretty far removed from the heart of the First Amendment,” since employees “can say what they want” outside the bargaining room.

Justice Elena Kagan said the teachers have a “heavy burden” in “asking us to overrule a decision” as “there are tens of thousands of contracts with these (agency-fee) provisions.” Justice Breyer wondered “what happens to the country thinking of us as a kind of stability” if the court votes to “overrule a compromise that was worked out over 40 years.”

One wonders, in an earlier era, would these justices have supported “stability” rather than reversing such decisions as Dred Scott and Plessy v. Ferguson. Ending segregation surely ushered in “instability,” but declaring the moral worth and legal standing of men and women regardless of race was considered far more important, even imperative. Isn’t freedom of speech of equal value?

The Economist magazine asked the question, “What would happen if agency fees disappear?” Its assessment is that despite the union argument that membership roles would thin and finances wither,

This is not necessarily the case: several European countries with higher rates of union membership than America do not allow unions to compel non-members to pay dues. Even if the ruling against California Teachers did accelerate the decline of unions, that would not necessarily be bad for Democrats. Unions can exercise a disproportionate influence on candidate selection, particularly in House and statehouse races. A party in which they had less influence might succeed in adopting more popular positions on subjects like merit pay and charter schools. In the long run, those alarming right-wing justices may just end up doing the left a favor.

In “Following The Equator” Mark Twain wrote, “It is by the goodness of God that in our country we have those three unspeakably precious things; freedom of speech, freedom of conscience, and the prudence never to practice either of them.” Fortunately, 10 teachers in California are indeed practicing these freedoms of speech and conscience. If they succeed, perhaps others will also be persuaded to exercise their rights, a healthy thing for a free, democratic society.

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Allan C. Brownfeld
Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.