Charlotte Garden is an Associate Professor at Seattle University School of Law and Litigation Director of the Korematsu Center for Law & Equality.
Across America, an intense debate is taking place over how states should structure their labor relations, and especially the extent to which state and local government employees should have the right to elect unions to represent them in collective bargaining. This debate has taken place against a constitutional backdrop that allows states considerable choice among different labor relations models, ranging from no collective bargaining at all to extensive bargaining over most working conditions. States like California that opt for robust collective bargaining regimes also decide whether or not workers may be contractually required to pay their share of union representation costs, known as agency fees. But that may change this Term in Friedrichs v. California Teachers Association. A holding for the petitioners in Friedrichs would invalidate agency fee provisions in countless longstanding contracts, undermine public workplace relationships, weaken unions’ abilities to represent workers, and destabilize settled law.
Friedrichs has been in the works since 2012, when Justice Samuel Alito wrote in Knox v. SEIU, Local 1000 that the constitutional justification for public-sector agency fees was “something of an anomaly,” all but inviting litigants to argue that Abood v. Detroit Board of Education should be overturned. Abood is a 1977 case which held that union-represented public-sector workers may not be required to pay the portion of union dues earmarked for activities unrelated to the union’s role as bargaining agent. But crucially, Abood also held that the inverse was true: represented workers may be required to pay for their share of union bargaining and contract enforcement.
Abood’s balance reflects two realities about collective bargaining. First, a major reason states choose to allow public-sector bargaining is to provide a productive and stable channel for workers’ voices, which is much more easily achieved when an elected union has adequate resources. Second, agency fees are appropriate when – as in this case – unions are required to fairly represent all workers in the bargaining unit, whether or not they become members; the alternative would permit destabilizing free ridership. Thus, Abood reflects a careful balance of the competing speech and association interests of workers (including both those who wish to associate with a union and those who do not), and state governments’ managerial interests.
In the nearly forty years since Abood was decided, its principles have become entrenched in both the law and public-sector labor relations. First, the Court has re-affirmed Abood numerous times, repeatedly relying on it in cases concerning such diverse topics as mandatory bar dues and generic advertising schemes. Even in its 2014 decision in , the Court distinguished Abood rather than rejecting it, recognizing the extensive work undertaken by unions that represent “traditional” public employees. Moreover, the cases affirming and relying on Abood have been relatively non-controversial, mostly avoiding five-four splits; up until 2012’s Knox decision, Abood’s approach was generally accepted by both liberal and conservative Justices, with only the occasional disagreement about subsidiary issues, such as whether or not particular types of expenses were germane to collective bargaining.
Second, while some states have made the legislative choice to disallow mandatory agency fees (as they are free to do), others have entered into longstanding union contracts that include agency fee provisions; as Justice Kagan observed in her dissent in Harris v. Quinn, there are thousands of these contracts across the country. Overturning Abood would set off a wave of contract renegotiations as unions attempt to internalize the costs of free riding. This might involve limiting non-essential union activities that benefit both workers and employers, including training programs, peer mentoring, and benefits counseling; or changing grievance procedures so that employers bear more of the costs of processing disciplinary cases. (The union may not, however, simply choose to stop representing non-paying non-members in grievances.)
Future negotiations, too, would be negatively affected. Collective bargaining agreements often contain remarkably detailed and complex provisions on issues such as health insurance benefits, requiring subject matter experts to make and evaluate proposals at the bargaining table. As Justice Antonin Scalia put it in the course of explaining Abood’s rationale in Lehnert v. Ferris Faculty Association (1991), unions need “[t]he services of lawyers, expert negotiators, economists, and a research staff, as well as general administrative personnel” to competently represent workers, and of course these professionals must be paid. Both workers and employers will be worse off when these services are scaled back or eliminated.
Is bargaining like lobbying?
Nonetheless, the petitioners in Friedrichs argue that the disruption associated with overruling Abood is necessary to protect the First Amendment rights of workers who object to funding union representation. Their primary argument is that workers cannot be required to pay for union bargaining costs because bargaining is substantially the same as lobbying, which the Court has already held workers (usually) cannot be compelled to fund.
But the analogy between bargaining and lobbying quickly breaks down. While it is true that both bargaining and lobbying involve pressing government actors to make particular decisions, the Court has routinely held that context matters: constitutional rights often turn on whether the government is acting as a sovereign or in another capacity, such as employer. Conversely, public-sector workers have much greater First Amendment protection when they are acting as citizens, rather than as employees.
This principle explains countless cases; perhaps the best known is Garcetti v. Ceballos, in which the Court held that the First Amendment does not protect public-sector workers when they speak in the course of performing their jobs. But even when public workers speak as citizens, government employers have considerable managerial freedom to preserve the integrity of their operations by punishing disruptive speech, as the Court held in Pickering v. Board of Education. (The Harris Court stated that the plaintiffs – home healthcare aides who objected to paying an agency fee – would win even under Pickering, but relied on the joint conclusions that the government was not acting in a traditional managerial capacity and that the union’s role was much more limited than in the typical case.) The Court applied a similar rule in the context of public employees’ petition rights in Borough of Duryea v. Guarnieri. And even outside the First Amendment context, the Court has held that the dormant Commerce Clause does not apply to state and local governments when they are acting as market participants rather than as sovereigns, and that the Tenth Amendment “anti-commandeering” principle applies only when state governments are acting as sovereigns.
Thus, any analogy between lobbying and bargaining is less important than the fact that public employers bargain in their managerial capacities, whereas they receive lobbyists in their sovereign capacities. Or, to look at it from another perspective, this difference in roles explains why government employers are free to bargain with an elected union acting as exclusive representative of its employees or to ban bargaining altogether – whereas, as much as a government might like to, it cannot ban lobbying or decide to hear from only a single lobbyist.
The First Amendment and opt outs
While most of the recent attention to Friedrichs has focused on Abood, there is also another question in the case: assuming agency fees are permissible, is it sufficient for unions to provide public employees an opportunity to opt out of paying the full dues amount? Or, must unions automatically exempt non-members from funding non-germane union activities unless they affirmatively opt in? The Knox Court held an affirmative decision to opt in was required in the context of a mid-year dues increase, but – remarkably – it did so without the parties having briefed the issue.
But Knox involved a highly unusual scenario: a mid-year dues increase specifically earmarked for a political campaign, with no advance opportunity to opt out. Here, however, non-members like the petitioners simply check a box annually to opt out of paying for the following year’s non-germane activities. This mundane paperwork should not implicate the First Amendment at all, as the Court has never held that minor bureaucratic requirements of this sort merit First Amendment scrutiny. Further, starting down the alternate path will lead to intractable problems – chief among them, if an “opt out” violates the rights of workers who preferred not to pay but did not fill out the form, then an “opt in” will also violate the rights of different workers: those who wanted to contribute to their union’s speech, but did not fill out the form.
It is an exaggeration to say that public-sector unions will cease to exist if the Friedrichs Court holds that agency fees are unconstitutional. At the same time, it is certain that disruption and discord will result within otherwise stable bargaining relationships as unions attempt to compensate for inevitable free riding. Moreover, such a holding would interfere with the long-accepted principle that government entities have substantial managerial leeway when acting as employers, and disrupt the labor relations systems adopted by nearly half of the states.