A Labor Perspective From University Of California Irvine School Of Law Dean Erwin Chemerinsky Via ocregister.com: Legal Precedent Should Stand In Teachers' Suit Against Union
No one ever can be forced to join a Public Employees Union, but Non-Union Members can, and should, be required to pay their fair share of the costs of the Collective Bargaining Process from which they benefit.
This has been the law for decades, but the U.S. Supreme Court will hear oral arguments on Monday (January 11th) in Friedrichs vs. California Teachers Association and consider whether to change this law and hold that Non-Union Members have a First Amendment right to refuse to pay any portion of the Union’s Dues.
In 1977, the Supreme Court reaffirmed in Abood v. Detroit Board of Education that no one can be forced to join a Public Employee Union - but the court held that Non-Union Members can be required to pay the share of the Union Dues that support the Collective Bargaining Activities of the Union, though they do not need to pay the part of the dues that support Union Political Activities.
Now, the court is being asked to overrule Abood in Friedrichs.
The court’s decision in Abood was based on a simple and undeniably correct premise: Non-Union Members benefit greatly from the Union in their Wages, their Working Conditions and the representation they receive.
The court explained that they should not be able to be Free Riders, benefiting from Collective Bargaining without having to pay their fair share of the costs.
Both government entities and Unions have relied on this for decades in entering into thousands of contracts governing the workplace.
In recent years, the five most Conservative Justices - Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito i have signaled a desire to reconsider Abood.
A lawsuit was filed in Federal District Court in Orange County with the goal of being a vehicle for the Supreme Court to overrule Abood and hold that Non-Union Members do not have to pay their fair share of the Union Dues that go to support Collective Bargaining.
The District Court and the Federal Court of Appeals cannot overrule a Supreme Court precedent and dismissed the lawsuit, but the Supreme Court granted review on the question of whether it should overrule Abood and the many decisions based on it.
The challengers claim that it is unconstitutional compelled speech to force Non-Union Members to pay for Union Activities, even though they benefit from them.
They are urging the Supreme Court to find that forcing them to pay dues for the Collective Bargaining Activities of the Union violates their First Amendment rights.
But there are many problems with this argument.
We all are constantly forced to pay for things where we disagree.
However, that does not mean we are being forced to speak.
All of us see our tax dollars go to pay for many things we dislike, but no one would think of that as compelled speech.
Students are required to pay student activity fees that go for speakers and other things with which they might disagree, but the Supreme Court expressly rejected the argument that this violates the First Amendment.
Having our money go to support something we dislike is not compelled speech.
Non-Union Members can say, or not say, anything they want.
They also have the First Amendment right to not join the Union.
Moreover, Abood draws a sensible distinction.
No one should have to support political activities with which they disagree, but all who benefit from the Collective Bargaining Process should have to share in paying for its costs.
The existence of a Union and its ability to require that people pay their fair share of Union Dues is a reflection of majority rule.
The Union exists because a majority of those in that workplace voted to Unionize.
No one has to join that Union, but all who benefit should share in paying for the Collective Bargaining of the Union.
Moreover, a State could adopt legislation prohibiting Non-Union Members from having to pay their fair share of the Union Dues that go to support Collective Bargaining.
Indeed, a majority of the States have adopted exactly such Right-To-Work (for less) Laws.
But now Anti-Union Forces are trying to make right to work the law in all 50 States via the Supreme Court and the First Amendment.
Here, it is the Liberals who are urging judicial restraint and asking the court to defer to the political process and follow 40 years of precedent.
If the court overrules Abood, some, and perhaps many, will choose to be free riders, not paying any Union Dues and knowing they will get the same benefits from the Union.
The decision will come down by the end of June.
There is no need to change the law in this area, and the Conservative Justices should practice the judicial restraint that they so often profess.
To Directly Access This Labor Perspective From University of California Irvine School of Law Dean Erwin Chemerinsky, Go to: www.ocregister.com/articles/union-698790-court-pay.html