In 1977, the U.S. Supreme Court set the rules for how public-sector unions could be involved in collective bargaining in Abood v. Detroit Board of Education, 431 U.S. 209 (1977). Although a string of recent Supreme Court cases have questioned the soundness of Abood, it has not been overturned.
That could change soon, however, depending on the outcome of the justices' reflections on the recent oral arguments in Friedrichs v. California Teachers Association, No. 14-915, which is the most recent and very likely the most far-reaching challenge to Abood yet. Although many court watchers believe the court will overturn Abood, there's much in former Justice Potter Stewart'sAbood opinion that would now question the wisdom of overturning Abood. I will explain the basis for thinking Abood is still good law after discussing that decision and Friedrichs' challenge to it.
Unions are typically classified as either "union shops" or "agency shops." Union shops represent all workers and require all of them to be union members. Agency shops also represent all workers, but do not require all workers to be union members. The Abood case involved an agency shop.
At issue in Abood was a Michigan law that authorized union representation of local government workers who were members of public-sector unions. Members of these unions had to pay union dues, and workers who chose not to join the unions were also required to pay the union an "agency fee"—sometimes referred to as a "fair share"—that was equal to the portion of the dues members paid to support the union's costs of undertaking collective bargaining activities.
One aspect of the holding in the Abood case would go on to become contentious. On the one hand, the 1977 Abood court required that the agency fees paid by nonmembers were to cover the costs incurred by unions for conducting collective bargaining activities, administering the union contract with the school board and developing procedures for resolving member grievances. But while members could be charged an additional fee to cover part of the costs of the union's political and ideological activities, a nonmember could not, if that member objected to the fee or did not agree with the political aims of the union.
Justice Anthony Kennedy, who most commentators consider a vital swing vote in this case, appeared to have mixed feelings about this case during oral argument.
At one point, Kennedy appeared to be expressing some support for the more liberal position that defends the concept of agency fees. But at another point, he appeared critical of such fees, characterizing them as a mechanism to silence non-union workers.
On the other hand, some may think that nonmembers should be required to pay as much as members pay. After all, they receive the same benefits as dues-paying members. If they don't pay for the benefits they receive, is it not fair to label them "free riders"?
In contrast, others think non-union workers have the right to oppose the political and ideological principles and policies of the union, and should not be compelled to subsidize what they object to. They argue further that workers have the right to work without associating themselves with an organization, such as a union or paying dues to one. The appellants' hope is that the court will find their First Amendment arguments far stronger than the union's and prevail against the appellees' claims that rest on simple "fairness" and conventional appeals to the force of precedents.
From the appellants' point of view, the Abood decision offends non-union members' right to choose whether to associate with or join a union, pay dues or a fair share of the costs for the union's collective bargaining and related expenses. These decisions, they contend, are for individuals to decide, such that there can be no collective decision that binds all workers.
The Friedrichs appellants, however, go one step further than many previous critics of union agency fees. This is their claim that all the activities of a public-sector union are political in nature, and that nonunion members are therefore not obliged to contribute anything toward the expenses of the union where they work.
Looking back now at Stewart's opinion for the court in Abood, we find the same basic issues before the court in 1977. Stewart summarized, with notable sensitivity, many examples of workers' First Amendment speech and association rights that might conflict with union values and principles. In these circumstances, many individuals would have their own reasons for opposing union values. As Stewart states,
"To be required to help finance the union as a collective-bargaining agent might well be thought ... to interfere in some way with an employee's freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit. But the judgment ... made is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress. The furtherance of the common cause leaves some leeway for the leadership of the group. As long as they act to promote the cause which justified bringing the group together, the individual cannot withdraw his financial support merely because he disagrees with the group's strategy."
If the court upholds the claim of the appellant teachers, that may be a harbinger of the death of labor unions, at least in their current incarnation in the United States. But even if the court were to hold that only agency shop workers are exempt from paying fees, that holding could cripple unions across the country, which employ millions of workers who would suddenly not be obligated to pay Teachers, Unions and the First Amendment | The Legal Intelligencer: