For more than 70 years, federal courts have concocted an array of excuses to avoid finding as unconstitutional federal and state statutes that force employers to recognize a single union as the monopoly-bargaining agent of all their front-line employees, including employees who choose not to join the union, on matters concerning pay, benefits, and work rules.
Courts have refused to overturn laws that prohibit an employer and a union nonmember from negotiating with one another with regard to workplace issues without Big Labor interference, even if both of the potential negotiating partners are willing. But courts have never been so brazen as to claim directly that bans on individual negotiations are instituted for the benefit of employees who don’t want a union.
Indeed, in decisions such as American Communications Association v. Dowds (1950), the High Court has flatly acknowledged that the truth is quite different. Chief Justice Fred Vinson’s majority opinion in that case specifically admitted that under the National Labor Relations Act (NLRA), the premiere federal law authorizing so-called union “exclusivity,” “individual employees are required by law to sacrifice [bargaining] rights which, in some cases, are valuable to them.”
However, in Friedrichs v. California Teachers Association (CTA), a case the High Court recently agreed to hear in its 2015-2016 term, teacher union lawyers are pretending that somehow, union nonmembers employed as teachers, unlike other employees, lose nothing as a consequence of not being able to bargain on their own behalf. (The plaintiffs in this case are being represented by attorneys for the Cleveland-based law firm Jones Day.)
To back up this extraordinary claim, lawyers representing the CTA, the largest affiliate of the giant National Education Association (NEA) teacher union, cite the High Court’s 38-year-old ruling in Abood v. Detroit Board of Education. The Abood opinion suggests, in passing, that prior to the unionization of public schools, school districts rarely offered individual teachers additional compensation for their special talents and efforts. (The entire CTA/NEA union brief in the Friedrichs case, filed in April, is available at the link below.)
Regardless of whether the Abood opinion was correct about this history, it is irrelevant today. In 21st Century America, thousands of union-free public charter schools located across the country do offer individual teachers higher pay if they are qualified for hard-to-recruit positions and/or if they are especially effective in the classroom. There is ample reason to believe that if public school districts weren’t routinely denied the opportunity to do the same thing by laws authorizing union monopoly bargaining, they would also be glad to treat teachers as individuals.
By pretending that being subject to a union monopoly doesn’t cost independent-minded teachers anything, the Friedrichs respondents seek to make it easier for themselves to justify forcing such teachers to pay dues for union bargaining they don’t want, and never asked for. But if the High Court looks at the current reality regarding the teaching profession, instead of relying on the dated assertions made in the Abood opinion, it will not accept CTA/NEA union lawyers’ gambit. Instead, it will build on previous cases argued and won by National Right Work Legal Defense Foundation attorneys and prohibit all public-sector forced union dues and fees.Brief of respondents California Teachers Association, et al. in opposition filed.