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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).

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