Public sector unions tremble; Friedrichs is coming

. . . and fair share fees are at risk. Unions collect dues from their members and "fair share" fees from nonmembers that they represent. Nonmembers say that violates the 1st amendment, but the US Supreme Court said it was OK in Abood v. Detroit Bd. of Ed. (US Supreme Court 1977).

Today the Court announced that it will review Friedrichs v. California Teachers Association.

Friedrichs is a head-on challenge of the 1977 Abood decision which upheld a state statute that allows an “agency shop” or "fair share" arrangement, whereby every employee represented by a union, even though not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues.

The Court has already called Abood "something of an anomaly." And the Court has laid why Abood stands on thin ice:

  1. Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson‘s first amendment analysis was “thin.”
  2. Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.
  3. The Abood Court fundamentally misunderstood Hanson‘s narrow holding.
  4. Abood failed to appreciate the difference between public sector union speech and private sector union speech.
  5. Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.
  6. Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable
  7. Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.
  8. The Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers.

[For a list of current employment law cases, see Supreme Court Watch.]