The Unions’ Newfound Love for Abood

October 19, 2015

The Unions’ Newfound Love for Abood. With Friedrichs v. California Teachers Association on the U.S. Supreme Court docket, unions across the country are worried that the 1977 Abood v. Detroit Board of Education decision will be overturned. They believe an activist conservative Court will jettison agency fee laws in the states that have them, and strip public sector unions of their political power. They emphasize that Abood was a unanimous decision by the Burger court, and that the Roberts court should not lightly overturn an almost 40-year-old precedent.

That unions should become such staunch defenders of Abood is ironic, since the decision was a defeat for unions. Abood and his fellow plaintiffs were public school teachers who objected not only to their dues being used for political activities, but to the requirement that they contribute to collective bargaining costs and join the union against their will or lose their jobs.

Once upon a time it wasn’t unusual for unions to require employees become members, to use dues money in support of political candidates, and to charge agency fees that were equal to full dues. Abood set the foundation for the current agency fee system by overturning what had been accepted practice.

Justice Potter Stewart, an Eisenhower appointee, wrote the Court’s opinion. He concluded that the Abood case as it related to collective bargaining was no different from previous precedent regarding private-sector collective bargaining. “The differences between public- and private-sector collective bargaining simply do not translate into differences in First Amendment rights,” he wrote.

He further stated that it was up to Congress, not the Court, to balance the “impact” on the First Amendment rights of collective bargaining objectors with the “important contribution of the union shop to the system of labor relations established by Congress.”

While Justice Stewart was sympathetic to the unions’ position, he punted on exactly how agency fees would be determined. “There will, of course, be difficult problems in drawing lines between collective-bargaining activities, for which contributions may be compelled, and ideological activities unrelated to collective bargaining, for which such compulsion is prohibited,” he wrote, adding, “We have no occasion in this case, however, to try to define such a dividing line.”

Justice Stewart was also concerned about placing upon employees “the considerable burden of monitoring all of the numerous and shifting expenditures made by the Union that are unrelated to its duties as exclusive bargaining representative.”

In defending Abood, the unions face another irony. The basis for many of the arguments of the Friedrichs plaintiffs is found in the concurring opinions of the Abood case itself.

“I agree with the Court, and with the views expressed in Mr. Justice Powell’s opinion concurring in the judgment,” wrote Justice Rehnquist, “that the positions taken by public employees’ unions in connection with their collective-bargaining activities inevitably touch upon political concern if the word ‘political’ be taken in its normal meaning. Success in pursuit of a particular collective-bargaining goal will cause a public program or a public agency to be administered in one way; failure will result in its being administered in another way.”

The opinion of Justice Lewis Powell, with which Chief Justice Burger and Justice Blackmun concurred, was even more forceful about collective bargaining being a political activity. “Working from the novel premise that public employers are under no greater constitutional constraints than their counterparts in the private sector, the Court apparently rules that public employees can be compelled by the State to pay full union dues to a union with which they disagree, subject only to a possible rebate or deduction if they are willing to step forward, declare their opposition to the union, and initiate a proceeding to establish that some portion of their dues has been spent on ‘ideological activities unrelated to collective bargaining’,” Powell wrote. “Such a sweeping limitation of First Amendment rights by the Court is not only unnecessary on this record; it is in my view unsupported by either precedent or reason.”

Justice Powell’s opinion should be read in its entirety, but here are some salient quotes:

*  “Where a teachers’ union for example, acting pursuant to a state statute authorizing collective bargaining in the public sector, obtains the agreement of the school board that teachers residing outside the school district will not be hired, the provision in the bargaining agreement to that effect has the same force as if the school board had adopted it by promulgating a regulation.”

*  “I agree with the Court as far as it goes, but I would make it more explicit that compelling a government employee to give financial support to a union in the public sector regardless of the uses to which the union puts the contribution impinges seriously upon interests in free speech and association protected by the First Amendment.” (emphasis added)

*  “The ultimate objective of a union in the public sector, like that of a political party, is to influence public decisionmaking in accordance with the views and perceived interests of its membership. Whether a teachers’ union is concerned with salaries and fringe benefits, teacher qualifications and in-service training, pupil-teacher ratios, length of the school day, student discipline, or the content of the high school curriculum, its objective is to bring school board policy and decisions into harmony with its own views. Similarly, to the extent that school board expenditures and policy are guided by decisions made by the municipal, State, and Federal Governments the union’s objective is to obtain favorable decisions and to place persons in positions of power who will be receptive to the union’s viewpoint. In these respects, the public-sector union is indistinguishable from the traditional political party in this country.”

* “Collective bargaining in the public sector is ‘political’ in any meaningful sense of the word. This is most obvious when public-sector bargaining extends as it may in Michigan to such matters of public policy as the educational philosophy that will inform the high school curriculum. But it is also true when public-sector bargaining focuses on such “bread and butter” issues as wages, hours, vacations, and pensions. Decisions on such issues will have a direct impact on the level of public services, priorities within state and municipal budgets, creation of bonded indebtedness, and tax rates. The cost of public education is normally the largest element of a county or municipal budget. Decisions reached through collective bargaining in the schools will affect not only the teachers and the quality of education, but also the taxpayers and the beneficiaries of other important public services.”

Justice Powell even raised questions about exclusive representation, noting that in previous precedent, “we expressly reserved judgment on the constitutional validity of the exclusivity principle in the public sector.”

“I would adhere to established First Amendment principles and require the State to come forward and demonstrate, as to each union expenditure for which it would exact support from minority employees, that the compelled contribution is necessary to serve overriding governmental objectives,” he wrote.

So despite the unanimous finding that fee-payers deserved at least the portion devoted to political activities reimbursed to them, four Justices thought it essential to emphasize that public sector collective bargaining was one of those political activities. And that was in 1978, when the political power and influence of public sector unions was mostly conjecture, and not established by decades of experience.

Fretful of their chances of winning the Friedrichs case inside the Court, the unions are planning massive political rallies against it in an attempt to curry public favor and save Abood. Had Berger, Rehnquist, Powell and Blackmun found a fifth vote in 1978, the Abood case might have gone much further towards the place where Friedrichs is now likely to take us.

Recent Intercepts. EIA’s daily blog, Intercepts, covered these topics October 14-19:

EIA Exclusive: Hillary’s NEA “Town Hall” Answers. “I really do want Lily and the leadership to recommend people for important positions…”

More Than Half of NEA Members Don’t Support Hillary, Says Board Member. Let us see this poll.

NEA: Hillary’s Another “Goalie”. Control the rebound.

Quote of the Week. “Clinton has raised an enormous sum of money so far this year, but is also spending at a fast clip. She has so far laid out tens of millions more than the next closest presidential contender, and in the third quarter burned through her money at a quicker rate than any top-tier candidate, Democratic or Republican.” – October 17 The Hill.