July 5, 2022

Volume XII, Number 186

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July 05, 2022

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Potential Game-Changing Public Union Case Lands at Supreme Court

For decades, public-sector unions have been allowed to collect mandatory dues from employees who have not actually joined the union. However, a pending Supreme Court case could change all that. This past Monday, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association, a case in which ten California public school teachers are challenging a policy that requires them to pay dues to the California Teachers Association, regardless of whether they support the union. The case has the potential to be a landmark case with deep implications for public-sector workers and unions across the country.

In 1977, the Supreme Court held in Abood v. Detroit Board of Education that notwithstanding the First Amendment, the government can force public employees to financially support some types of union speech. Abood held that employees could be required to subsidize union collective bargaining with the government, but not union political activities intended to influence government policy. Although 25 states have enacted "right-to-work" laws, unionized employees in most of the remaining states are required to pay hundreds of dollars in union dues, even if they have opted out of union membership.

By agreeing to hear Friedrichs, the Supreme Court appears willing to reevaluate Abood's holding. Indeed, at oral argument, some Justices appeared deeply skeptical of the unions' reliance on Abood. The teachers are urging the Court to overrule Abood, arguing that because government-employee collective bargaining deals directly with taxpayer dollars and taxpayer-funded resources, it is inherently political, and forcing employees to pay a union engaged in bargaining thus means forcing them to support political positions with which they may disagree. Justice Scalia seemed to agree at oral argument, stating that "almost by definition" all matters that are collectively bargained with the government fall within the political sphere.

Two recent Supreme Court cases, Knox v. SEIU (2012) and Harris v. Quinn (2014), suggest that the Court might be ready to end forced union dues in the public sector. In Knox, the Court held that it was unconstitutional for a union to force non-member state employees to subsidize a campaign against two ballot propositions without the employees' prior consent. The Knox Court also recognized that "a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences," and deemed Abood's rationale "for compelling nonmembers to pay a portion of unions dues" to be "something of an anomaly." Two years later, the Court in Harris sharply criticized Abood as having "questionable foundations" because, among other things, "in the public sector, both collective-bargaining and political advocacy and lobbying are directed at the government." Consequently, the Court explained, in "the public sector, core issues such as wages, pensions, and benefits are important political issues."

While the arguments of the Friedrichs petitioners are rooted in Knox and Harris, Friedrichs is clearly different in scope. While the Supreme Court ruled against mandatory dues on narrow grounds in both Knox and Harris, Friedrichs places before the Court a broad First Amendment challenge to all public sector forced dues. 

A victory for the petitioners in Friedrichs may not be fatal to public-sector unions because, as Justice Scalia and Chief Justice Roberts theorized, many workers could choose to keep paying dues voluntarily. Such a ruling would also not stop unions from negotiating or spending money on lobbying efforts, and it would not force them to represent non-members. It would merely allow public workers to refrain from financially supporting a union with which they disagree. 

On the other hand, if prior history at the state level is any indication, a win for Friedrichs and her fellow teachers might hobble the unions significantly. For example, in Wisconsin nearly 60,000 public-sector employees left  the state's largest teachers union and more than 30,000 state, county, and municipal employees left their union after the state enacted a law that exempted public-employee members of collective bargaining units from being forced to pay dues. Those figures represent more than fifty percent of the unions' total memberships prior to the enactment of the state law.

It should be noted that, even if the Supreme Court ultimately outlawed all mandatory union dues in the public sector, such a ruling would not apply to private-sector unions, most of which are covered separately by the National Labor Relations Act. Nevertheless, employers of all types should monitor the case. A decision is expected later this year.

Gonzalez Saggio & Harlan LLP | Copyright © 2022National Law Review, Volume VI, Number 13
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About this Author

Carlos R. Pastrana, Gonzalez Saggio, Labor relations lawyer, Milwaukee, employment Discrimination Attorney
Associate

Carlos R. Pastrana practices in all areas of labor and employment law, including matters involving discrimination, retaliation, sexual harassment, FMLA, wrongful termination, labor relations, unfair labor practices, unemployment insurance, workers compensation, workplace safety, and Federal contractor issues. He has litigated before both local and U.S. Courts and agencies, including the U.S. Court for the Wisconsin Eastern and Western Districts, U.S. Court for the District of Puerto Rico, U.S. Court for the Eastern District of Washington, the United States Courts of...

(414) 277-8500
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