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The Road to Abood: Part II

My first post delved briefly into the history and significance of the concept of “exclusive representation” in labor law.  This post will explore the even more dubious application of the NLRA (private sector) model of collective bargaining (including exclusive representation) to the public sector. 

In the interest of disclosure, I was drawn to this topic long ago.  My primary practice area for 30 years as a lawyer was labor and employment law, representing management.  In 1984, I wrote an article for the Journal of Labor Research entitled “Legal Aspects of Exclusive Representation: Ruminations on the Private-Public Sector Analogy.”  In that article (written, sadly, before the digital era), I pointed out—as have many others—that collective bargaining has no place in the public sector.  Indeed, in the United States, state and local governments did not grant public employees the right to join unions and/or  bargain collectively until long after the New Deal—the 1960s and 1970s—and some still don’t.  (Ironically, as government payrolls have expanded dramatically in recent decades, and unionized industries in the private sector have contracted, the membership of public sector unions now exceeds that of private sector unions.)

Even President Franklin D. Roosevelt, the father of the New Deal, rejected unionization of government employees.  The “inequality of bargaining power” rationale for the NLRA does not exist when the employing entity is the polity, not a corporation.  The allocation of taxpayer resources is fundamentally a political decision, not a market transaction.  And, unlike the private sector economy, which is constrained by the market, the government operates as a monopoly; all citizens are required to pay taxes.  Thus, the discipline of competition, which limits both a private sector union’s demands and the employer’s acquiescence to them, does not moderate collective bargaining in the public sector.  Excessive labor costs are passed through to the “consumer” (i.e., the taxpayer) with no market recourse.  Strikes by government employees hold the public hostage with no market alternative for the services being withheld.  For these reasons, public employees should not have the right to unionize or bargain collectively.  The inevitable result is unsustainable benefit and pension costs negotiated by public employee unions that are driving many cities and states into insolvency.

The biggest difference, however, between the private sector model (NLRA) and the public sector is that “state action” does not generally exist when the employer is a privately-owned business, but is omnipresent when the employer is a governmental entity.  All constitutional rights (save the 13th Amendment) protect the individual against the state or federal government, not against private parties.  This is where the doctrinal underpinnings of Abood get interesting.  In a series of decisions beginning with Hanson (1956)—followed by Street (1961) and Allen (1963)—the U.S. Supreme Court interpreted the Railway Labor Act (similar to the NLRA, but without the 1947 Taft-Hartley Act’s protections against the closed shop) to prohibit the use of employees’ compelled financial support for any purpose other than expenses connected with collective bargaining.  Thus, a dissenting employee cannot be required to support—with compelled dues, fees or other assessments—a union’s political activities.

Because Hanson, Street, and Allen all involved private sector employers, where was the “state action”?  That is a good question.  As Justice Alito noted in Harris v. Quinn, the Court’s decisions were often fractured and confusing, and the “reasoning” was opaque.  Many commentators concluded that the opinions in Hanson, Street, and Allen were based on statutory grounds.  In any event, in 1977, the Supreme Court had occasion to address, for the first time, the constitutionality of “union security” clauses (such as mandatory payment of dues or “agency fees”) in public sector labor contracts, in which the government (as employer) was requiring dissenting employees to financially support a union.  The resulting decision, Abood v. Detroit Board of Education, was a travesty, for reasons I will explore in the next post. [To be continued]

Reader Discussion

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on July 22, 2015 at 11:58:43 am

Dang !

You keep this up and make me go back and read Abood in its original garb.

Disclosure (really assertion):

(ah hates Labor Law. It's so artificial as a cover for political manipulation of economic interests for the maintenance and expansions of political power; coupled with the resultant co-opting of the legal system for the operations of the Federal Administrative State, producing recipes of judicial frostings for moose pies)

Whilst I (and perhaps others) sense a recognition by some jurists (and scholars) of a "need" for the judiciary to disentangle its co opted functions in the operations of the Federal Administrative State, and some current proceedings may reflect that recognition, the judiciary is faced with the absence of any other mediating body or factor in our society to constrain the totalitarian trends of the Federal Administrative State. The judiciary is between the "flood" and the rocks of the "hard place." It is not certain they can return the legal system to its former functions. We remain slightly above the flood.

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R Richard Schweitzer
on July 22, 2015 at 20:46:40 pm

Richard:

Yep, to everything:

However, let us not forget that there ample *opportunity points* for the Black Robes to prevent, or at least minimize the impact of, this arrogation of the Legislative and Judicial power by the Executive (FAS) Branch going as far back as the late New Deal period (we will let the lawyers come up with the cites).

Yes, they are confronted with a situation (of their own making) in which there is currently no "apparent" alternative; but simply because one can not find a means of correcting a dysfunctional "mechanism" in the immediate future, does not justify its continuance. Quite a pickle, these venerated Robed deities have created for us.

I have little sympathy for them - and if Justice Thomas is reading, most people don't. Go for it. Clarence!!!!

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gabe
on July 23, 2015 at 12:47:57 pm

'@ Gabe

Whilst there are executive arrogations, the fecundity of the Federal Administrative State derives chiefly from the devolution of legislative responsibilities to unelected (and essentially "uncontrolled")
Administrators; principally through legislation consisting of only "broad brush" objectives and wide-ranging authorizations (and discretion) to create and enforce regulations.

Legislation has displaced Law; regulations have displaced legislation.
A multitude of legislated ends - a paucity of legislated means.

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R Richard Schweitzer
on July 23, 2015 at 15:58:18 pm

Richard:

Poor wording on my part.

Absotively the fault lies with the Legislative for yielding its power to the Executive. My point is simply this: The Black Robes, had they not been asleep at the wheel (or some would say driving their own version of the Constitutional bus) would have determined that the "grant" by the Legislative to the Executive was not permissible under the *then* constitution.
Nowadays, with the exception of Judge Thomas, all of the Robed Ones seem to be happy driving this bus or at least furnishing a "supercharger."

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gabe
on July 23, 2015 at 21:44:32 pm

The deficient wording must be on my part.

The devolution of legislative responsibility did not go to the executive (thus it would be still in the realm of the Constitution) it goes to an entirely non-constitutional class (bureaucrats if you must) of the unelected.

Where your "Robes" come in is with the disposition of the Constitutional prohibition of Delegation of Powers, which became limitation on Delegation and then discretion to delegate (leaving more time to campaign and more work for unelected but expanded legislative staffs).

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R Richard Schweitzer
on March 13, 2019 at 06:02:27 am

[…] the public sector was erroneous. I have previously written about “the road to Abood” (here and here), and explained why the Court’s poorly-reasoned decisions under the National Labor Relations Act […]

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Getting Over the New Deal with Janus
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on July 16, 2020 at 08:01:17 am

[…] the threshold concept of “exclusive representation,” and continuing with the unions’ right to compel the payment of monies by non-members as a condition of employment, and the abrogation of employers’ common […]

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