Abood v. Detroit Board of Education

  • February 5, 2016
    Guest Post

    by Kent Greenfield, a Professor of Law and the Dean’s Research Scholar at Boston College, where he is the faculty adviser for the ACS student chapter. He is the author of the forthcoming Corporations Are People Too (And They Should Act Like It). Follow him on Twitter @Kentgreenfield1

    If government employees can object to funding a union’s political activity, should shareholders have the right to object to a corporation’s? The Supreme Court has answered no, and a new case risks making the gap between the rights of dissenting employees and dissenting shareholders more stark.

    But there is good reason to treat shareholders and employees differently.

    The tension arises from two lines of free speech cases. One protects corporations’ right to spend money in elections while another allows government employees to opt out of their share of union dues. These cases have little in common at first glance. But the corporate spending cases assume that shareholders have no right to object, while the union cases enshrine the right to object as a constitutional value.

    In January, the Court heard arguments in Friedrichs v. California Teachers Association. That case is a challenge to the 1977 case Abood v Detroit Board of Education, which allowed unions to charge employees they represent a fair share of the costs of collective bargaining. Objecting employees can refuse to fund a union’s political involvement, the Court said, but had to pay for non-political activity. Court watchers believe the justices will use Friedrichs to expand government employees’ rights to object to include the non-political.

    Meanwhile, the Court’s protections of corporate speech pay little heed to the interests of dissenting shareholders. In Citizens United v Federal Election Commission six years ago (how time flies!), the Court rejected the argument that shareholders should be protected from corporate spending with which they disagreed. “Allowing government to use the excuse of protecting shareholder rights to stifle the speech of private, voluntary organizations undermines the First Amendment,” said the Court. Critics are already blasting the Court’s apparent inconsistency. Corporations can engage in political activities without concern for the views of shareholders, but unions must offer objecting employees an opt-out from paying even for collective bargaining?

    But it is a false analogy.

    Let me be clear. Overruling Abood would be a mistake, and Citizens United was a blunder. But shareholders and employees are not the same.

    Unions are associations, united by a common and collective purpose. The union itself has a legal duty to represent the interests of its members and others in the bargaining unit. And the union is financed by contributions from its members and others who benefit from its representation.

  • November 19, 2015
    Guest Post

    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.

  • May 1, 2015
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond School of Law

    In a blog post following the Supreme Court’s decision last term in Harris v. Quinn, I predicted that the constitutionality of union fair share fees would soon be back at the Court. It took little prescience to make such a prediction and indeed, the plaintiffs in Friederichs v. California Teachers’ Association worked mightily to get the case on the Court’s docket as quickly as possible. The Court will decide whether to grant cert in the near future.

    Although this issue will no doubt return repeatedly to the Court, it should decline to hear the case. The 1977 decision of the Court in Abood v. Detroit Board of Education correctly concluded that fair share fees are constitutional, and the decision should not be disturbed. Abood allows the union to charge for its mandated representational duties, but not for political expenditures. In this context, the objectors’ first amendment interests are reduced and the interests of the government employer that has entered into an agreement with the union enhanced. Justice Alito suggested in Harris, however, that all union activity in the government sector implicates the highest first amendment interests. This is at odds with the Court’s cases on the first amendment interests of public employees following Abood.

    In recent years, the Court has held that the government has stronger interests in restraining speech when it acts as an employer. Accordingly, when employees speak pursuant to their job duties, their speech is unprotected. Additionally, when an employee’s speech is about an internal workplace grievance, it is similarly unprotected by the first amendment. It is precisely these grievances that the union is obliged to handle for all employees regardless of membership.  If speaking about the grievance is unprotected, why is compelling the unwilling employee to pay for this otherwise unprotected speech an interference with first amendment rights?  Further, Justice Alito’s Harris opinion suggests that when one employee asks for a raise, the speech is unprotected but when the union asks for a raise on behalf of all employees, it is high order political speech which the employee cannot be compelled to support.  As Justice Kagan pointed out in the Harris dissent, the fact that it takes more money to pay multiple employees does not transform the character of the speech when the substance, asking for a raise, is the same.

    There are many other reasons for the Court to deny cert. Abood has been settled law for almost 40 years, Justice Alito’s efforts notwithstanding. As Justice Kagan ably pointed out in Harris, principles of stare decisis, including the reliance interests of thousands of employers and unions and millions of employees, counsel restraint. Moreover, as I have argued in earlier posts, fair share agreements are an essential pillar of the system of labor relations that has served our country well for 80 years.  And finally, as pointed out in the opposition to cert, the record in this case has not been developed, as the plaintiffs rushed to accept Justice Alito’s invitation for an opportunity to overrule Abood.

  • July 1, 2014
    Guest Post

    by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service Law, George Washington University Law School

    Why would you pay for something if you can get it for free?  The obvious answer is that you wouldn’t.  And after this week’s decision in Harris v. Quinn (No. 11-681), if you work as a homecare provider in Illinois, you can get all the pay raises and benefits increases that the union negotiates without having to pay a penny to support those efforts.  According to the 5-4 opinion written by Justice Samuel Alito, the First Amendment guarantees that outcome.  Here’s how he got there, and where he went off the proper constitutional track.

    In about half the states, employees who work for state agencies (including teachers) have the right to join unions, and those unions have the right to bargain with the state or its agencies over terms and conditions of work. Depending on both the state and the job, the union may be able to negotiate over pay and benefits, as well as working conditions. Many such contracts have grievances procedures in which the union represents workers in an effort to resolve disputes with the employer.  Negotiating and implementing contracts cost money, and to pay for those services, states authorize unions, where a majority of the workforce agrees to establish one, to charge all employees for those services directly related to collective bargaining.  In exchange, the union is under a legal obligation to fairly represent all individuals covered by the collective bargaining agreement. The right to organize for public employees is governed by state law, and there is another system for private sector employees that generally operates in the same way, albeit with some significant differences that were not relevant in Harris.

    The workers in Harris were paid by the state, but worked for Medicaid recipients who needed a variety of home care services. Under Illinois law, the recipients choose the person who would provide those services (many of whom are family members) and direct and control his or her assignments. There were many other distinctions between those workers and the typical state employee, but Illinois decided that it would be willing to allow those workers to form a union to bargain with the state over wages and benefits, if a majority of those who performed such services voted for a union, which would mean the mandatory payment of monthly dues to support its work.

  • July 1, 2014
    Guest Post

    by Nicole G. Berner, Associate General Counsel, Service Employees International Union

    In a narrowly divided opinion, the conservative majority of the Supreme Court in Harris v. Quinn ruled against homecare workers who provide crucial care to people with disabilities and the elderly and to the consumers who rely upon that care to live independently and with dignity in their homes. Harris v. Quinn was brought by the National Right to Work Legal Defense Foundation, an extreme anti-worker group funded by the likes of the Koch brothers and the Walton family. The case is part of a broader concerted attack on working people and women in this country. Although the June 30 ruling is a setback for homecare workers, our members are more determined than ever to ensure quality care for people with disabilities and seniors, all of whom want nothing more than to enable this population to live independently and with dignity at home.

    The petitioners asked the Court to disregard one of the bedrock principles of Supreme Court jurisprudence (stare decisis) and to overrule Abood v. Detroit Board of Education, 431 U. S. 209 (1977), a case relied on and reaffirmed in myriad cases since it was decided nearly four decades ago. In Abood, the Court held that a government entity may, consistent with the First Amendment, require public service employees to pay a fair share of the cost that a union incurs negotiating on their behalf for better terms of employment. While the Court declined the invitation to overrule Abood – a decision that would have radically restructured public sector labor relations in this country – the majority instead ruled that Abood’s protections do not extend to home care workers in the State of Illinois.

    The Court’s narrow ruling leaves intact the right of most public service workers such as teachers, fire fighters, and police officers to join together in a union and to negotiate for fair share arrangements. The ruling also leaves intact the rights of the Illinois homecare workers to form a union and to bargain collectively through an exclusive bargaining representative. But the conservative five-justice majority carved out an exception to Abood for the tens of thousands of homecare workers in Illinois, thereby weakening the ability of this majority female workforce to advocate collectively for improved working conditions and quality care.