There are many problems with rabidly pro-forced unionism California labor studies professor John Logan’s attack op-ed, published by The Hill today (see the link below), against the plaintiffs and the National Right to Work Legal Defense Foundation attorneys who have represented them in Harris v. Quinn, a case the U.S. Supreme Court will almost certainly decide next month, and perhaps as soon as this coming Monday. More problems than can readily be addressed in a single blog post.
But perhaps the most important misimpression left by Logan is that, should a Harris majority agree with the plaintiffs that state laws authorizing the forced payment of dues or fees to a union as a condition of public employment are unconstitutional, that would represent a radical break with decades of contrary court decisions.
Logan is of course correct that since 1977’s Abood v. Detroit Board of Education the High Court has given a green light to public-sector forced dues and fees. But he glosses over the very important point that Abood itself as well subsequent decisions affirming its basic thrust explicitly conceded that laws authorizing the termination of public employees for refusal to pay dues or fees to an unwanted union are constitutionally problematic.
For example, Justice Antonin Scalia admitted in the 2007 majority opinion for the Foundation-won Davenport case that it is “undeniably unusual for a government agency to give a private entity the power, in essence, to tax government employees.”
So what has been the High Court’s rationale for sanctioning this “undeniably unusual” privilege for government union bosses?
Abood gave a judicial nod to forced financial support for government unions’ bargaining-related activities in jurisdictions where union officials are legally empowered to represent in the workplace employees who don’t want a union, along with those who do.
If legislators grant union officials the latter privilege, theorized Justice Potter Stewart while writing for a six-justice majority, legislators must also have the option to empower union bosses to force unwilling workers to pay union dues or fees as a condition of employment.
Justice Stewart all the same admitted that compulsory payments to unions may well “interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from do so, as he sees fit.” It seems he regarded such “interference” to be constitutionally acceptable in part because he never even considered the possibility that a worker might refuse to join a union because he believes the union’s monopolistic representation at the bargaining table harms him economically. None of the subsequent Court decisions sanctioning public-sector forced union dues has even touched on this possibility, either.
But during the Harris v Quinn oral arguments this January, Justice Sam Alito finally did raise the obvious, but hitherto judicially ignored, point that many workers do not remotely “benefit” from having a union as their monopoly-bargaining agent.
Alito repeatedly grilled Service Employees International Union (SEIU) lawyer Paul Smith about whether it is permissible, under the First Amendment, for the government to force public employees to bankroll a private organization, i.e. a union, that they reasonably believe is harming them.
At one point, the justice cited the example, well-grounded in reality, of a teacher union that opposes merit payand any change in the tenure system, and a teacher who is not a union member and “disagrees completely with the union on these issues.”
Even though the teacher is not a union member, continued Alito, he “still has to pay a pretty hefty agency fee, maybe $700 a year. So the teacher is paying this money to the union to make an argument to the employer with which the teacher completely disagrees.” Alito subsequently asked Smith what he would say to such an employee.
The SEIU lawyer didn’t make any pretense that teachers and other types of public employees who oppose union officials’ workplace agenda somehow “benefit,” on the whole, from having those union bosses act as their monopoly-bargaining agents, and should therefore be forced to pay dues, or be fired.
Instead, Smith mechanically invoked Abood, the very precedent the Harris case is challenging.
Since Abood failed to acknowledge a key, highly relevant fact that even Smith now concedes, that is, the fact that union officials claim it is their constitutional prerogative to force employees who are harmed, as well as those who are helped, by union monopoly bargaining to fork over union dues as a job condition, it would be irresponsible for the High Court now simply to reaffirm Abood, as Logan is pressing for it to do.
The rationale for government-sector forced dues that Potter Stewart swallowed 37 years ago does not comport with reality as it is now understood, and Big Labor’s attorney in the Harris case has admitted as much. If the High Court wants nevertheless to reaffirm Abood’s bottom line, it can only licitly do so if it provides a rationale completely different from Abood’s. And not even a forced-unionism cheerleader like John Logan seems eager to explain what that new rationale might be.