Will the Supreme Court Do More Damage To Public Sector Unions?

April 28, 2015
Guest Post

by Charlotte Garden, Assistant Professor and Litigation Director of the Korematsu Center for Law & Equality, Seattle University School of Law. Follow her on Twitter @CharlotteGarden.

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.

It is easy to see why that might be the case.  In recent decades, the Court has been busily limiting the rights of public employees, particularly when it comes to internal workplace speech about their own working conditions.  In this line of cases, the Court has been heavily deferential to public employers’ need to manage their workforces.  Or, as Justice Kennedy put it in Borough of Duryea v. Guarnieri, court review of public employees’ First Amendment claims should not be allowed to “consume the time and attention of public officials, burden the exercise of legitimate authority, and blur the lines of accountability between officials and the public.”

Public employers that have decided on collective bargaining as a means of managing their workforces have an equally strong interest in avoiding court interference.  To be clear, governments decide whether or not they will bargain collectively with unions at all.  States that choose bargaining also decide what form the bargaining will take, and what subjects they will bargain over.  Unsurprisingly, some states have chosen to adopt robust systems of bargaining; in others, it is a misdemeanor to bargain with a union representing public employees.  States like California ― which now faces a serious teacher shortage ― have essentially tasked unions like the one in Friedrichs with bargaining for wages and benefits that will encourage teachers to remain in the classroom.  If a court ruled that there was a First Amendment right for individual public sector workers to free ride on their colleagues, unions’ abilities to do the task set for them by the state would be undermined.  Further, that holding would do little to amplify the speech rights of objecting employees; as it is, workers are already free to decline to join their union, to opt out of certain union spending, and to advocate against the union (and its contract proposals) to their coworkers and the public.

Alternatively, the Friedrichs plaintiffs have asked the Court to extend Knox and hold that represented workers who do not join the union must always opt into the non-mandatory portion of union dues, instead of opting out after receiving notice.  But Knox’s rule was unprecedented; in fact, the parties in Knox had not asked for it and it was not briefed.  Instead, the idea that an opt-in default can somehow be required by the First Amendment was an innovation of the Knox majority, and it rested on the assumption that an opt-out default would cause people to contribute to union political speech without meaning to.  Maybe that empirical assertion is true; maybe not ― though the Friedrichs plaintiffs present no evidence on this issue, and the suggestion that checking a box on a form is a formidable obstacle that objecting employees might fail to overcome strains credulity.  Moreover, the idea that the First Amendment is even implicated by a viewpoint neutral and easily overcome default is unsupported in case law.

That the Court did not overrule Abood when it had the chance in Harris suggests that a majority of the Court viewed that course of action as unwise and unwarranted by the First Amendment.  We will know soon whether that view is likely to hold through next Term.