In the wake of two major Supreme Court decisions about public sector unions, anti-union groups moved quickly, filing a raft of new complaints seeking to capitalize on and extend Harris v. Quinn and Knox v. SEIU Local 1000. The first of those cases, Friedrichs v. California Teachers Association, has now reached the Court, which will consider granting cert later this summer. A cert grant in Friedrichs will signal that at least four Justices believe that the Court is willing to go beyond Knox and Harris ― and possibly even impose “right to work” in the public sector.
The Friedrichs petitioners call on the justices to overturn Abood v. Detroit Board of Education. In Abood, the Court held that states and elected unions ― which are required to treat all the workers they represent fairly whether or not they join ― may agree to allow the union to charge each represented worker for his or her share of the union’s work on their behalf. Abood’s caveat, though, is that employees have a First Amendment right to opt out of contributing towards their union’s other spending, including its spending on politics. The Abood Court struck this balance in recognition of the relative weakness of workers’ First Amendment interests when their union is bargaining over pay, benefits and other working conditions with a public employer ― especially when weighed against employers’ and unions’ interests in promoting labor stability by preventing free ridership. Abood is a foundational case that not only governs the relationship between public sector unions and the employees they represent, but also announced the principle that now undergirds other government regulatory programs that incidentally involve speech.
The lawyers bringing Friedrichs and cases like it were likely encouraged by dicta in Harris and Knox, both authored by Justice Alito. (Harris held that “partial public employees” ― those whose working conditions are set jointly by the state and individual private clients ― could not be required to pay anything towards the cost of union representation. Knox held that unions must obtain affirmative consent from workers before charging them the optional portion of mid-year dues increases.) And indeed, both opinions, but especially Harris, criticize Abood. Nonetheless, it is telling that Harris left Abood entirely intact, despite the petitioners’ exhortations that the case should be overruled. That suggests that at least one of the justices in the five-justice majority had significant reservations about overruling Abood just one year ago.