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Overruling Abood Will Correct a Travesty

My first two posts in this series discussed, respectively, the origins of the concept of “exclusive representation” in the NLRA and the Supreme Court case law leading up to Abood in 1977.   In this post, I will analyze the decision in Abood (which, it will be recalled, was roundly criticized in Harris v. Quinn (2014) and may be overruled in Friedrichs). 

First, a brief digression.  In 1979-80, I was a third year law student at the University of Texas law school.  Because I was interested in labor law, I took a seminar on public sector labor relations.  I wrote my seminar paper on the Abood case, which I felt (then and now) was a terrible decision.  I submitted my seminar paper to the Labor Law Journal, which published it as “Union Security Clauses in Public Sector Labor Contracts and Abood v. Detroit Board of Education: A Dissent,” in the September 1980 issue (31 Labor Law Journal 391).  As is evident from the title, I argued that Abood was wrongly decided.  It was one of my first published articles.  (As far as I can tell, it is not available in a digital format, but I have plenty of reprints if anyone is interested; contact me through the Library of Law and Liberty [link].)

Abood held that agency shop agreements involving a governmental employer do not per se violate the First Amendment rights of free speech and freedom of association of dissenting members of the bargaining unit.  The Abood majority applied Hanson and Street to the public sector with a facile analogy to the Court’s private sector precedents: “The desirability of labor peace is no less important in the public sector, nor is the risk of ‘free riders’ any smaller.”  The Abood majority did acknowledge that nonunion employees could be forced to pay only for the union’s expenses in the areas of collective bargaining, contract administration and grievance adjustment, not expenditures related to political candidates or beliefs.  The application of private sector precedents to public employees was profoundly misguided.  As Justice Alito genteelly stated in Harris v. Quinn, the majority’s “analysis [in Abood] is questionable on several grounds.”

Justice Lewis Powell wrote a withering concurring opinion that took issue with the majority’s glib reliance on Hanson and Street.  He sharply disputed the majority’s ruling “that there is no constitutional distinction between what the government can require of its own employees and what it can permit private employers to do.  To me, the distinction is fundamental.”  Powell pointed out that “Under the First Amendment, the government may authorize private parties to enter into voluntary agreements whose terms it could not adopt as its own.”  Powell correctly noted that a public sector labor contract “is not merely analogous to legislation; it has all the attributes of legislation for the subjects with which it deals.”  Accordingly, Powell went further than the majority in Abood, and stated: “I would make it more explicit that that compelling a government employee to give financial support to a union in the public sector—regardless of the uses to which the union puts the contribution—impinges seriously upon interests in free speech and association protected by the First Amendment.” (Emphasis added.)

Powell recognized that public employee unions are inherently political; they are essentially special interest political parties which lobby for higher pay and greater benefits for government employees.  Powell further observed that “Collective bargaining in the public sector is ‘political’ in any meaningful sense of the word.”  In Abood, which involved a teachers’ union, negotiations implicated “such matters of public policy as the educational philosophy that will inform the high school curriculum,” as well as wages, benefits, and working conditions, which “will have a direct impact on the level of public services, priorities within state and municipal budgets, creation of bonded indebtedness, and tax rates.”  The allocation of finite taxpayer funds among competing demands is the essence of governmental decision making.  By blindly following the inapt precedents of Hanson and Street, the majority in Abood failed to give sufficient weight to the dissenting employees’ First Amendment rights.

As scathing as Powell’s concurring opinion was, it did not go far enough.  Public employee unions are not only inherently political in all the ways Powell pointed out, they also engage in partisan political activities and attempt to influence elections.  Can there be any doubt that the government’s requirement that dissenting public employees contribute monies to an organization engaged in objectionable political or ideological activities violates the First Amendment, even if the compelled contribution is limited to the organization’s collective bargaining expenses?  If an organization has political goals—that is, if it is directly involved in activities such as supporting political candidates or propagating ideological views—any state-compelled support is violative of dissenting employees’ First Amendment rights.

Abood was incorrectly decided in 1977.  Since then, the membership of public employee unions has skyrocketed, making them one of the most potent—and destructive– political forces in America.  I fervently hope that the Court in Friedrichs takes the opportunity to overrule Abood, correcting a travesty that has endured for almost 40 years (and vindicating the thesis of my 1980 Labor Law Journal article).

Reader Discussion

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on July 24, 2015 at 12:32:39 pm

Can there be any doubt that the government’s requirement that dissenting public employees contribute monies to an organization engaged in objectionable political or ideological activities violates the First Amendment, even if the compelled contribution is limited to the organization’s collective bargaining expenses?

Uh … yeah, there can be doubt. This argument is not an attack on public unions; it’s an attack on all unions. And, for that matter, on management’s relationship to shareholders.

More generally, I favor policy unbundling. It may be fine for government to support AIDS prevention and to oppose prostitution – but we cross a line when we withhold AIDS prevention funds from organizations that decline to publicly oppose prostitution. It may be fine for government to promote procreation, healthy child rearing, and private mutual aid pacts – but we cross a line when we withhold support for child rearing and mutual aid pacts except for those couples putatively capable of procreation. It may be fine for government to refrain from promoting religion – but we cross a line when we refuse to do business with organizations that happen to promote religion. It may be fine for government to refuse to provide abortions – but we cross a line when we refuse to do business with organizations that happen to provide abortions.

If government has determined that agency fees provide an appropriate mechanism to prevent free ridership regarding collective bargaining, then the fact that the agent providing the collective bargaining just happens to also espouse views I don’t like is not relevant.

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nobody.really
on July 24, 2015 at 15:01:18 pm

The extensive references to the thinking of Lewis F Powell may offer an opportunity for an apologia of the acerbic tone of much of my commentary on this site since it was opened by Liberty Fund a few years back.

In its beginning, The Library of Liberty and Law (as a site) tracked very closely to the intended concerns – Individual Liberty – of the establishing spirit of The Liberty Fund. Over time there has been a drift toward other concerns in the fields of legal theories, social studies, and other matters as sufficient in themselves without their immediate linkage to Individual Liberty.

However, if we look closely behind all those other concerns we can find the links to, or departures from, concerns with Individual Liberty. That is the apologia for acerbity of these often scouring or pedantic comments.

Through the example of the presentation of this particular case and of the reasonings in its determinations, which did concern constitutional protection of individual liberty, we can go further back to consider why and how the legislation (of 1935) came into existence with its effects on individual liberty.

Why do we have "Labor Law?" Why is that "Law" in the form and substance it has become? Do the answers to those questions disclose impacts on individual liberty? What was the background for those developments?

For an answer we might refer to a memorandum written by Lewis F Powell, then a practicing attorney, in the summer of 1971 to his friend Gene Sydnor (whose family incidentally were competitors of my father's engineering firm). The prescience of Powell's thinking comes through today in the current analyses of Charles Murray.

Here is an important extract (1971 remember):

"Relationship to Freedom

"The threat to the enterprise system is not merely a matter of economics. It also is a threat to individual freedom.

"It is this great truth — now so submerged by the rhetoric of the New Left and of many liberals — that must be re-affirmed if this program is to be meaningful.

"There seems to be little awareness that the only alternatives to free enterprise are varying degrees of bureaucratic regulation of individual freedom — ranging from that under moderate socialism to the iron heel of the leftist or rightist dictatorship.

"We in America already have moved very far indeed toward some aspects of state socialism, as the needs and complexities of a vast urban society require types of regulation and control that were quite unnecessary in earlier times. In some areas, such regulation and control already have seriously impaired the freedom of both business and labor, and indeed of the public generally. But most of the essential freedoms remain: private ownership, private profit, labor unions, collective bargaining, consumer choice, and a market economy in which competition largely determines price, quality and variety of the goods and services provided the consumer.

"In addition to the ideological attack on the system itself (discussed in this memorandum), its essentials also are threatened by inequitable taxation, and — more recently — by an inflation which has seemed uncontrollable.14 But whatever the causes of diminishing economic freedom may be, the truth is that freedom as a concept is indivisible. As the experience of the socialist and totalitarian states demonstrates, the contraction and denial of economic freedom is followed inevitably by governmental restrictions on other cherished rights. It is this message, above all others, that must be carried home to the American people."

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R Richard Schweitzer
on July 24, 2015 at 15:59:03 pm

"If government has determined that agency fees provide an appropriate mechanism to prevent free ridership regarding collective bargaining..."

Yes, BUT:

Why is it the governments business whether or not "free ridership" is present, prevalent, or even possible - unless, of course, you are referring top a municipal bus line? In effect, the government is curtailing liberty when it intervenes in a purely economic transaction, the nature of which is (at least theoretically / constitutionally) beyond its proper purview.

In the governments view of this transaction I am either incompetent to defend myself or I am nothing more than a "freeloader." In either case, I must either be protected or constrained AND as such I must be made to contribute to a "cause(s)" with which I may not agree.

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gabe
on July 24, 2015 at 17:10:11 pm

This is beating on the same ol' tin pan, but:

We could have clearer understandings if we identified the persons, interests or coalitions using the instrumentalities or mechanisms of governments rather than asserting something is "government action, objectives or choices."

"If government has determined that agency fees provide an appropriate mechanism to prevent free ridership regarding collective bargaining . . . "

No, a group (union officers?) did not want "free riders" they decided to use an administrative body (NLRB), the legal system and the coercion of the federal government for that objective. There no doubt were and are people (human beings - with motives) acting in political and administrative positions of the governmental facilities who support those other motives of that group (for various reasons). But, that is not "government."

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R Richard Schweitzer
on July 24, 2015 at 19:08:38 pm

Richard:

Apologies - I do not have your discipline and still use the shorthand "guvmnt" for those human interactions / strivings.

But you are again absotively correct. Nobody really wants to recognize that guvmnt functionaries are no different than the "political" self aggrandizing co-workers about whom nobody really wishes to confront in the office environment - even if one knows that they ARE self-serving! Thus, "graciousness" and forbearance becomes a distinct disadvantage to the principled worker / citizen.

'Bout time, we got a little more vocal, I would say, concerning the "interests" of OUR(?) *public* servants.

Justice Thomas are you reading this?

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gabe
on July 25, 2015 at 23:23:21 pm

[…] Overruling Abood Will Correct a Travesty […]

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School Vouchers are a Victory for Liberty - Freedom's Floodgates
on July 26, 2015 at 17:26:07 pm

As you no doubt know, the courts have generally held that speech by government employees in their capacity as government employees is not protected by the 1st Amendment. That includes speech about their terms and conditions of employment. The right to petition the government for redress of grievances does not include the right for a government employee to complain at will to his/her employer about his/her working conditions, or to complain about those of his/her co-workers. The fact that his/her salary is paid by the government, and is thus the result of a political decision, doesn't change this.

Scalia's questions during oral argument of Harris v. Quinn were very on-point in the connection between this and the legality of mandatory agency fees. There is essentially no difference in giving government workers the ability to free-ride on the union's speech - essentially, to not speak - and giving them the freedom to not speak when directed to, as part of their employment, by their supervisors.

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Image of Robert Levine
Robert Levine
on July 28, 2015 at 00:27:49 am

Uh ... you know that Justice Thomas is a public servant, too, right?

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nobody.really
on July 28, 2015 at 14:01:31 pm

Well, schucks, I'll be! I didn't know that!!!
Thanks for letting me know - now I will have to change my entire worldview.

But yes, Justice Thomas IS a public servant - name five more!

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gabe
on July 30, 2015 at 10:37:33 am

The analogy between employers and employees, on the one hand, and management and shareholders, on the other, is imperfect. Yes, corporate management makes political contributions, and takes political positions. Objecting shareholders can easily sell their publicly-traded shares in favor of an alternative more to their liking. The transaction costs are much greater for an employee objecting to an employer's political contributions or positions. And, in the compulsory dues/fees context, the employee is required to make the payment directly.

My problem with Abood is that the employer is the government, and compulsory payment of dues/fees constitutes state action, which does not exist in the management-shareholder context.

Eliminate exclusive representation, and you will eliminate the free rider rationale. If Union representation and membership were truly voluntary, employees would overwhelmingly opt out, as has happened in Wisconsin.

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Mark Pulliam
on December 06, 2018 at 06:02:38 am

[…] decided during the 2017-18 term, Janus v. AFSCME, the U.S. Supreme Court overruled Abood v. Detroit Board of Education [1] and held that requiring government employees to pay “agency fees” to labor unions as a […]

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After Janus, What’s Next?

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.