The frog is in the water, and the water is warming up. In Friedrichs v. California Teachers Association a group of non-union teachers is asking the US Supreme Court to overrule Abood v. Detroit Bd. of Ed. (US Supreme Court 1977) and hold that public-sector “agency shop” arrangements violate the 1st Amendment.
First, the Court has to grant certiorari, agreeing to even hear the case.
After a bunch of briefs were filed, the California Attorney General waived her right to respond. Aha! The Court will have none of that. Today the Court requested the California Attorney General to respond by May 27.
This case is a big deal because it is a head-on challenge of the 1977 Abood decision which upheld a state statute that allows an "agency shop" 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.
Here is the majority’s anti-Abood manifesto:
- Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson‘s first amendment analysis was “thin.”
- Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.
- The Abood Court fundamentally misunderstood Hanson‘s narrow holding.
- Abood failed to appreciate the difference between public sector union speech and private sector union speech.
- Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.
- Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable
- Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.
- 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.