by Ann C. Hodges, Professor of Law, Richmond School of Law
The Supreme Court’s grant of certiorari in Friedrichs v. California Teachers Association suggests that it is considering overturning almost 40 years of precedent allowing unions to charge for the representation that they are required to provide to workers. Little has changed since the Court, in Abood v. Detroit Board of Education, approved this important part of the labor relations systems adopted by many states to deal with their workers. In fact, Court decisions since Abood have given employers even more freedom in dealing with their workforces and in restricting the workers First Amendment rights in order to further the employer’s interest in providing efficient and effective government services.
In a new ACS Issue Brief I authored addressing Friedrichs, I point out the strong government interests that warrant the very limited infringement on First Amendment rights imposed by requiring employees to pay for the services they receive from unions. The case is not about charging for union political activity. That is already prohibited. Nor does the requirement to pay fair share fees restrict the ability of employees to advocate for their own views with the government, including opposing the union’s negotiated collective bargaining agreement in open forums. Further the employees can remove the union as representative if a majority of their coworkers oppose union representation. The Court has approved far more onerous restrictions on employee speech rights in the interest of government efficiency.
Unions forced to represent workers without compensation will struggle to fulfill their function in the labor relations systems adopted by employers to manage their workforces. The goal of labor peace may be threatened. The resources available to unions to exercise their First Amendment rights and those of their members will be diminished by the failure of employees to pay for the services provided. Reducing the voice of workers in the marketplace of ideas creates even more space for the dominance of the corporate voice. Our democracy flourishes when all participate. Dominance by one segment of society impoverishes us all.
For more information about the risks posed by invalidating the many existing state statutes allowing unions to charge fair share fees and the reasons that the Court got is right in 1977, read the ACS Issue Brief.