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Symposium: Overrule Abood to protect individual rights

Deborah J. La Fetra is a Principal Attorney at Pacific Legal Foundation.  Since 1990, she has written dozens of amicus briefs and directly represented dissenters in challenges to state-compelled subsidization of politicking.  She is representing PLF and Linda Chavez on an amicus brief in the Friedrichs case.

In Davenport v. Washington Education Association, the Supreme Court described laws that empower unions to garnish the wages of non-union members as an “extraordinary state entitlement to acquire and spend other people’s money.”  Nonetheless, for nearly forty years, since Abood v. Detroit Board of Education, the Court has allowed that wage garnishment on the theory that without such entitlements, unions’ collective bargaining efforts might be undermined by “free riders.”  A series of cases upholding workers’ First Amendment rights to speak and associate as they choose has steadily chipped away at Abood, culminating in this Term’s grant in Friedrichs v. California Teachers Association.  The Court should take this opportunity to overrule the flawed Abood decision.  That case was based on faulty premises and an unrealistic view of public-employee unionism, and the rule it announced infringes on individual rights.

The most important part of freedom of expression is the right not to conform.  It is relatively easy to create an enforced unity through political, legal, and social pressures, and the threat – often the reality – of violence.  But the nonconformist must rely on the Constitution for protection.  Dissent is by definition counter-majoritarian, which means that dissenters need the protection of institutions that shield them from majoritarian political processes.  Unions rely heavily on peer pressure, coercion, and inertia to prevent dissenting members or nonmembers from opposing union political activities.  Workers often feel either compelled to join the union, or to self-censor, lest their disagreement incur retaliation by union leaders or coworkers.  Rebecca Friedrichs herself said in The Washington Post that she was “shunned and treated like a second-class citizen” when she expressed her disagreement with union politicking.  “I was trying to follow my conscience and I was abused for that.”

Given government’s monopolistic status, public-employee unions are in a unique position to exert more coercion and intimidation against dissenting workers than are private-sector workers, who can more easily find other jobs, if need be.  Public-employee unions are also in a uniquely powerful position to influence the adoption of public policies, which means that government workers who don’t agree with their union’s leadership are less able to obtain redress in the political arena.  But most fundamentally, the difference between public- and private-sector unions is that public-sector bargaining is a political process, directly involving the whole public, that concerns the allocation of scarce taxpayer government resources.  It is an inherently political activity.  That is why all of the Court’s attempts to distinguish public-employee union collective bargaining from other types of political and ideological activities have proven illusory.  No such logical distinction ever did, or can, exist.

For example, when the D.C. Circuit considered whether the union could compel dissenters to contribute toward the cost of lobbying on airline-safety-related issues in Miller v. Airline Pilots Association, the court explained that while all pilots are interested in airline safety, they will not all agree on the proper costs.  That is a political issue like any other, and workers should not be forced to subsidize the union’s position on that issue if they disagree.  Or consider the CTA’s successful opposition to a 2012 California bill that would have enabled school districts to take prompt action against teachers accused of sexually molesting children.  Can such a bill be characterized as nothing more than an employment-related matter falling within the union’s role as a spokesman for workers?  Of course not: it was a political issue that concerned citizens generally.  The CTA’s successful advocacy for California’s Proposition 98, which compels the state legislature to devote forty percent of all state revenues to public schools, affects wages and working conditions and has long-term effects on the state’s (in)ability to produce a balanced budget.  Teachers as employees clearly benefited because the funding formula added $450 million to the budgets of local school districts, most of which went to teacher salaries and benefits.  But in their capacity as citizens and taxpayers, those same teachers may have different opinions about the wisdom of a constitutional provision that ties the legislature’s hands in allocating limited revenues among all of the many different services the state provides.  It is simply not possible to classify such issues solely as employment-related, and the First Amendment does not empower public-sector unions to take a position on these issues with money taken from workers without their permission.

Worse, the interests of public sector unions sit on both sides of the collective-bargaining table.  School board members stand for election and depend on the campaign support of their bargaining “adversaries.”  Teachers’ unions pour tremendous resources into these elections and their favorites rarely lose.  The board members thus suffer a conflict of interest between their role as employers and managers, and their role as public officials who are supposed to exercise objective judgment on behalf of taxpayers and parents.  Naturally, the unions prefer their collective bargaining “negotiations” to occur behind closed doors, and many of their elected “adversaries” share this preference because local government administrators have a personal interest in the outcome. Whatever wage and benefit increases the agreement gives the rank and file will eventually be matched for managers and administrators – or better.  Public-sector unions tilt the collective bargaining process in favor of those who receive, and against those who pay, the bills – and nobody speaks for the taxpayer.

Wages are not even the most critical element of the compensation package.  As taxpayers nationwide are well aware, sweetheart pension deals cut with public-employee unions have created a financial crisis of Greek proportions.  California’s “Little Hoover Commission,” a bipartisan oversight agency, estimates the unfunded liabilities of the state’s ten largest public pension plans at $240 billion (about equal to Greece’s entire GDP) and predicts that large cities in California will soon be devoting one-third of their operating budgets to pension payments alone.  Collective bargaining on pension issues has a direct impact on the level of public services, priorities within state and municipal budgets, creation of bonded indebtedness, and tax rates.  Staggering under the weight of its pension obligations, San Jose, California, reduced the number of city employees from 7,400 to 5,400, including hundreds of positions cut from the police force.  A police substation built in 2010 has never been used because the city can’t afford its $2 million annual operating cost.  Are pensions a key collective bargaining element?  Of course, and a private-sector union that sought benefits on that scale would either be forced to modify its demands or bankrupt the employer and put its members out of business.  No such considerations discipline public-sector unions, who face a pseudo-adversary that never goes out of business, and pays its bills with taxpayer money.  The political ramifications of public-sector collective bargaining over pensions extend far beyond the interests of the unions and their employer – they affect the workers who are also citizens and taxpayers.  They should not be forced to subsidize positions they might have good reason to oppose.

In most of California, the public’s only chance to discover what elected officials have agreed to give unions is when the final agreement is on the public agenda for approval, at the very end of the process.  This is nothing more than a rubber stamp, and parents or taxpayers who complain are brushed aside because their concerns are raised “too late.”  A handful of California cities, counties, and special districts enacted transparency laws called “Civic Openness in Negotiations” (COIN) ordinances that require public release of collective bargaining offers and counter-offers in a timely manner on the city’s website, along with analysis by an independent financial expert.  Residents have opportunities during council meetings to comment on negotiations and, once the bargaining agreement is finalized, it is subject to public review and comment for at least two council meetings before the vote.  This is plain, old-fashioned sunshine-style good government.  The public-employee unions hate it.  They are lined up behind Senate Bill 331, by state Sen. Tony Mendoza (D-Artesia), that penalizes COIN jurisdictions – and only COIN jurisdictions – by imposing onerous and expensive auditing and review requirements on them.  Is this germane to collective bargaining?  Of course.  Is this, too, baldly political?  Of course.

Public-sector unions represent interests that arise not from civil society, but from inside the government – for the purpose of influencing government itself.  That’s just why Franklin Roosevelt – no right-wing extremist – said that “the process of collective bargaining, as usually understood, cannot be transplanted into the public service.”  A union’s core interests are the jobs and benefits of its members, and its duty is to defend their members’ private interests, vis-à-vis the employer.  But in the public sector, Roosevelt wrote, “[t]he employer is the whole people, who speak by means of laws enacted by their representatives….  Upon employees in the [government] service rests the obligation to serve the whole people.”  A government employee union thus dangerously straddles the line between the workers’ private interests and their public obligations.  Government employees work for the public and are paid by the public, and at the same time are also taxpaying members of the public.  For the state to force them to subsidize one side of these debates – a side with which many of them for good reason disagree – is unfair, disrespectful, dangerous, and unconstitutional.

The Court’s grant in Friedrichs comes at an ideal time to review the public-employee unions’ ability to garnish workers’ paychecks for the inherently political act of collective bargaining for taxpayer-funded wages and benefits.  It should require public-employee unions to join the great American tradition of voluntary associations, in which participants willingly contribute their time and treasure to common goals.

Recommended Citation: Deborah La Fetra, Symposium: Overrule Abood to protect individual rights, SCOTUSblog (Aug. 24, 2015, 11:00 AM),