Clawing Back the Right of Free Speech

Many say the Roberts Court has been exceptionally supportive of First Amendment principles. As Michael Toth ably details in his Liberty Forum essay, these principles have been at issue in two recent cases, Knox v. SEIU Local 1000 (2012) and Harris v. Quinn (2014). Both dealt with public employee unions and both were decided in ways that push against compelled speech.

The controversies arose from state laws that allow (or require) elements of coercion in our public labor relations. One of them is to oblige some workers to subsidize speech with which they disagree. Taking in a wider picture, we see an entire set of laws that have facilitated the growth of unions in state and local government. Without them, organizing and collective bargaining in government would be much more difficult. Public employee unions would have fewer members and less money. Not surprisingly, public sector unions and their allies have long defended these practices.

Let us briefly look at some of the other coercive elements.

First, election: Often it is by a one-time majority vote that employees force one another to accept a union as their “exclusive representative.” Over 90 percent of current union members belong to union in which the “certification election” designating it the exclusive representative occurred long before they were hired. Current workers never voted on whether to unionize. They had to accept that the union was in place when they took their jobs, even if they later decided not to join it.

Another is the “agency fees” highlighted by Toth. In 25 states, once a union has been established, workers can be forced to contribute money to the union even if they do not join. For workers who decide to join, the payments are dues. For workers who decline, the charges they are assessed are these agency fees, so-called because the union acts as their agent in collective bargaining. (Sometimes the charges are called “fair share fees,” referring to non-members’ paying their fair share of the costs of collective bargaining.)

Finally, the “dues checkoff.” In many jurisdictions, an arrangement is allowed whereby the state government garnishes members’ dues and non-members’ agency fees from the paychecks of state employees. With a dues checkoff, workers never actually see the money that goes into union coffers. Any choice about spending that portion of one’s salary is eliminated.

The labor movement in the United States has long favored laws that make employees join unions and pay dues. Unionists argue that unionization is in the collective interest of all workers. However, some workers remain unpersuaded and do not want to join a union. This could be for many reasons. Some do not want to be in an adversarial relationship with management or find collective bargaining unprofessional. Other, particularly hard-charging, workers may not want to join because they believe their advancement will be slowed by union rules. And of course still others may object to the political partisanship shown by the unions.

To check such recalcitrant workers, unions preferred the “closed shop,” wherein all workers are forced to join. This, however, was ruled unconstitutional in National Labor Relations Board v. General Motors (1963). Since then, American workers cannot be forced to become union members. Unions have also long supported exclusive representation and opposed allowing various unions to represent various groups of workers within a bargaining unit.

Labor leaders continue to vigorously support making all workers, whether members of the union or not, pay into union coffers. They argue that if the union is legally bound to equally represent all workers in a collective bargaining unit, their ability to fulfill this duty will be undermined if only some employees pay the costs. They cannot carry out a duty for all with the funds of only a few. In short, where there is exclusive representation—and there always is—the burden of the free-rider is too heavy to bear.

The Supreme Court accepted this logic. In Abood v. Detroit Board of Education (1977), the Court reaffirmed that workers could not be forced to join a union but held that they could be forced to pay their share of the costs of collective bargaining. A decision that can only be described as “Solomonic” remains good law today.

Consequently, unlike other interest groups, labor unions have what social scientists call their collective action problem solved for them. Other interest groups must offer some combination of incentives—solidarity, ideology, or material benefits—to get people to donate their time or money to the cause. In the case of labor unions, requiring all workers in a bargaining unit to pay the union for its representation (in the 25 non-right-to-work states), means that the union doesn’t have to figure out how to build membership.

The key is that most unions set the cost of agency fees for non-members to be very close to members’ union dues. That is, they do so unless employees specifically opt out, or exercise what is pejoratively termed a “clawback” provision, which gets them a refund of the percentage of their fees that the union says it spent not on collective bargaining but on political activity.

Whether or not there is an opt-out, and whether or not there is a clawback mechanism in place, the union sets the percentage of the agency fee that will be used for collective bargaining. As Toth mentioned, in Knox, the SEIU agency fee in California was 99.1 percent of dues, unless non-members opted out, at which point their agency fee would be reduced to 56.35 percent of dues. Clearly, the union could count on some portion of non-members forgetting to opt out, enabling it to collect as much money from them as from members. Perhaps some of those non-members wanted to support SEIU’s political activity. But some surely did not.[1]

With agency fees set at nearly the same amount as dues, employees have little motive to avoid joining the union—especially since membership, for the same amount of money, comes with other benefits such as dental insurance, legal services, or the ability to vote in union leadership elections. We can see the effect of this practice in the fact that, in states permitting agency fees, more than 90 percent of teachers belong to unions. In states that don’t allow them, only 68 percent of teachers are unionized.

It is a classic case of the default option having important policy consequences. If the default is that the worker pays nearly the same as union dues, then many workers will join the union. If the choice is that the worker pays nothing to the union unless he or she joins it, then fewer workers will join. In sum, agency fees have become a back-door way of overcoming the prohibition on the closed shop.

This is where First Amendment issue arises. To begin with, it is hard for workers to know how their monies are being spent by the union. Even if they exercise their Hudson (1988) rights—the union must provide workers with an itemized list of its expenditures—it takes a huge amount of effort to track what is really going on. Money is fungible. It is hard to tell what is being done under expenditure categories like “member education.” Maybe such activity involves some form of speech that the worker would support. But maybe not.

The problem is that the theoretically clear line separating spending on political activity and collective bargaining is blurred in practice. And the unions have every incentive to keep matters opaque, as it redounds to their financial advantage. While this problem exists in both public and private sector unions, it is more problematic in the public sector. Why? Because unions representing government’s own employees are more fundamentally political than unions in the private sector. As Justice Samuel Alito put it in Knox:

In the private sector, the line is easier to see. Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government. But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government.

The implication is that in the public sector, even bargaining over something as noncontroversial as pay has political implications. It requires the union to take the position that more tax dollars should be spent on salaries for their members than on other pressing public priorities. The inherently political character of bargaining in government means that some members and non-members are being forced to underwrite political positions with which they disagree—even if there purports to be a strict separation of accounts for spending on political advocacy and collective bargaining. The entire agency fee, not simply the technically “chargeable” part for collective bargaining, is problematic on free speech grounds.

In sum, the common cause of the union is prioritized over an individual public employee who dissents from the union.[2]

It then becomes an issue whether this can be squared with the Supreme Court’s general rule that people control their own speech and beliefs. In West Virginia v. Barnette (1943), the Court established the interests of the individual speaker as supreme, a view which was reaffirmed in a number of cases since then.

The Court has also elevated the individual speaker in situations where there is compelled speech. In Unites States v. United Foods (2001), it held that the federal government could not force a mushroom grower to participate in a government-established “Mushroom Council” by paying a special assessment that would underwrite a generic advertising campaign promoting mushrooms.

The logic of these First Amendment cases, among others, suggests that Abood has drifted outside of the mainstream of the Court’s jurisprudence.[3] Justice Alito concluded as much in Knox, writing that Abood is an “anomaly.” And he rejected the union view that agency fees are justified to prevent free-riding. As he put it: “free-rider arguments . . . are generally insufficient to overcome First Amendment objections.”

Looking ahead, the question is whether Justice Alito can mobilize a coalition of the willing to overturn Abood. Such a move would require overturning an important precedent that has been affirmed several times since the late 1970s. As Justice Elena Kagan argued in her dissent:

The Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision.

If the Court does do the impossible, it will have a significant impact on government-labor relations. Following Alito’s arguments in Knox and Harris could effectively declare a right-to-work law for all 50 states. Agency or fair-share fees in the public sector would be unconstitutional. The percentage of workers belonging to public sector unions would fall. The monies collected by those unions would decline, as well.

The Court’s decision to hear Friedrichs v. California Teachers Association raises the possibility of overturning Abood. The case presents the free speech problem posed by unionizing government workers in particularly sharp relief.

Were it to determine to proceed more incrementally it could take the lesser step of addressing the default option for non-members’ agency fees. Rather than require workers to affirmatively object to political assessments or to invoke a clawback mechanism, the Court might rule that the only position consistent with the First Amendment is one where non-members would opt in if they wanted to pay for political activities. That is, they must agree in writing to pay the “non-chargeable” or political percentage of their fees.

Whatever happens, it seems clear that Abood has allowed considerable infringement of individual rights over the past 40 years. Looking at the history of public sector unions, it is now evident that that decision was based on a false equivalence between public and private sector unions. This helps explain its unintended negative effects on free speech.

Justice Alito clearly wants to prevent past mistakes from persisting, and because he sees Abood as a mistake, its power as a precedent is significantly diminished.

[1] In Harris, SEIU’s primary objective was monetary. It wanted to get Illinois’ home healthcare workers to pay into its’ coffers. The union could provide very few representation services to these workers, as their wages were set by statue, they did not share a common workplace, and they served at the pleasure of clients, which made negotiated work rules impossible. Yet prior to the Harris decision, SEIU was collecting about $10 million a year from approximately 20,000 home health workers.

[2] Brief Amici Curiae Constitutional Law Professors, et. al. Friedrichs v. California  petition for writ of certiorari (2015).  https://www.cir-usa.org/legal_docs/friedrichs_cert_amicus_law.pdf .

[3] Ibid.