Ann Hodges
August 25, 2015
Ann C. Hodges is a Professor of Law at the University of Richmond School of Law.
As every first-year law student learns, the First Amendment is not absolute because the government can restrict speech with adequate justification. When the government acts as employer, the burden of justification is reduced because it has a strong interest in controlling the speech of its employees to provide effective service to the citizens.
The case of Friedrichs v. California Teachers Association involves a First Amendment challenge to laws affecting employee speech. The plaintiffs complain that requiring them to pay the cost of the representation that the union is mandated to provide forces them to subsidize speech with which they disagree. The Supreme Court upheld this practice against the same constitutional challenge in 1977 in Abood v. Detroit Board of Education. Friedrichs requires no different result. Congress, in the National Labor Relations Act (NLRA), and the states that have similar statutes, adopted the existing labor relations systems to balance the rights of employers, employees, unions, and the public. “Fair share” fees are an integral part of these carefully constructed systems, insuring the effective functioning of the systems to achieve the goal of orderly labor relations. That interest outweighs the objecting employees’ far weaker interest in not paying for collective representation when they do not agree with bargaining goals of the majority of their fellow employees. The Court should leave well enough alone.Although the challenge in Friedrichs arises out of the public sector, the history of fair share fees is intertwined with the history of the private sector NLRA. The NLRA expressly allows unions and employers to negotiate agreements requiring employees represented by the union to pay the costs of collective bargaining and contract administration, unless the state has enacted a law prohibiting such agreements. Those laws have come to be called, somewhat misleadingly, “right to work” laws. Many public-sector labor relations statutes, patterned after the NLRA, similarly permit negotiation of fair share agreements or expressly require payment of fair share fees. The Court approved fair share fees in the public sector in Abood.
What justifies forcing employees to pay fees to a union if they object? The rationales recognized in Abood, and questioned by Justice Samuel Alito in the recent opinions of Knox v. SEIU, Local 1000 and Harris v. Quinn, are labor peace and avoiding free riders. Justice Alito’s dismissal of these justifications, which certainly prompted Friedrich’s arrival at the Court in warp speed, fails to appreciate that they are part and parcel of longstanding labor relations systems chosen by many states. Given the decline in the unionized percentage of the work force in the last thirty years, it is perhaps understandable that many may not recognize the history behind these systems, the importance of each part of the system to the whole, and the consequent risk of dismantling the systems piecemeal. But it is crucial that the Court consider the full scope of the labor relations systems in order to evaluate properly the weight of the justification for any infringement on employees’ First Amendment rights.
The United States, in contrast to most developed countries, has adopted a system of exclusive representation. When a sufficient number of employees are interested in union representation, bargaining units are defined by expert agencies to encompass groups of employees with similar terms and conditions of employment. The group then decides by majority vote whether to have union representation at all and, if so, by which union. If a majority vote for representation, the union represents all of the employees in the bargaining unit. The benefits of any contract negotiated apply to all, even those who oppose the union, and any grievance procedure to enforce the contract is open to all. If the union does not handle all employee grievances fairly and in good faith, it will be legally liable. In practice, this means that unions must provide at least equal, if not better, representation in the grievance process to those employees who are not members, because failure to do so risks an expensive lawsuit.
This exclusive representation system provides many benefits to employers. The employer has to deal with only one union for each bargaining unit. There is only one set of negotiations, one contract, and one grievance and arbitration procedure to administer. The employer does not face several unions representing the same group of employees competing to outdo one another. Employee complaints are channeled through the union, which weeds out the non-meritorious, enabling the employer to focus on a limited number of complaints and leaving the union to deal with employee dissatisfaction. A corollary to this system is a series of bars that apply to other unions seeking to represent the employees. These bars provide stability for the employer, which does not face ongoing, disruptive campaigns by other unions seeking to represent the employees. In public-sector jurisdictions that permit strikes, and in the private sector, strikes are limited by collective bargaining agreements and their dispute settlement mechanisms. Furthermore, states can tailor their labor relations systems to fit their needs. Examples include requiring bargaining over different subjects for different groups of employees or allowing some employees to strike but not others.
While employers may not seek unionization, if it comes they benefit from the union’s ability to provide information about the needs and desires of the employees. This enables the employer to tailor the use of its resources to employee preferences, resulting in happier and more productive employees. The public benefits as well. Indeed, the public sector is full of examples of unions and employers working together to benefit the public interest, including improving teaching quality, increasing student achievement, reducing costs, and providing more effective citizen service. Substantial evidence demonstrates that unionized high-performance workplaces, where unions and management work cooperatively to make workplace decisions, are highly efficient and productive.
Unions also benefit from the exclusive representation system, although the advantages for the union are mixed. The union that wins the representation election is insulated from challenges to its representation rights for significant time periods, but other unions cannot organize those employees. Additionally unions must represent individuals who are not members and may be hostile to the union, reducing the resources available to serve those members who pay full dues.
Accordingly, the union is not just a membership organization that provides incidental benefits to nonmembers. It is an organization that, by law, must provide benefits to nonmembers in order to facilitate a comprehensive system of labor relations. Although fair share agreements are not authorized in all states, there is a classic collective action problem at work. The union’s power comes from the collective. When some individuals get the full benefits without paying, however, even the union’s supporters may make the rational decision not to pay. Ultimately the union may lack the resources to engage in effective representation, which will eviscerate the entire system. Therefore, to enable this system to function effectively, many states have decided that fair share fees are necessary.
Before labor laws provided orderly legal processes to determine representation rights and regulate collective bargaining, bitter strikes, often accompanied by violence resulting in injury and even death, were common. While most of the violence took place in the private sector, public-sector strikes, even where illegal, were more common prior to enactment of legal processes to resolve disputes. Conflict between management and labor is inevitable, but orderly legal processes established by comprehensive labor relations policies chosen by the states can channel conflict into more productive and peaceful means of resolution and encourage employers and employees to work together for the public good. It is this full system of labor relations that the Court must take into account in determining the constitutionality of fair share fees that may impinge on the First Amendment rights of objectors. It is the complete system that promotes healthy labor relations and requiring all who benefit to pay is an integral part of what makes the system work.
It is important to remember that the constitutional rights of government employees are more limited than those of citizens. In Connick v. Myers, the Court warned against constitutionalizing government employee grievances and thereby impairing the government’s ability to operate the workplace. Most of the decisions involved in collective bargaining and contract administration, such as how to allocate paid leave or overtime work, have no ideological component. And charging objectors for activities that do, such as candidate advocacy and almost all lobbying, is impermissible. Further, employees who object to union positions are free to engage in their own advocacy in opposition. Last, but not least, if a majority of employees are dissatisfied with the union, they can remove its representation rights. Therefore the imposition on objecting employee speech rights is quite limited compared to the weighty government interests in peaceful and productive labor relations.
If the labor relations system that has served well for so long is in need of revision, that task should be left to Congress and the state legislatures. The Supreme Court should not dismantle it piece by piece in the name of free speech.
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