In upholding the constitutionality of Big Labor-public employer pacts to fire government employees who refuse to pay fees to a union they would never voluntarily join 38 years ago, the late U.S. Supreme Court Justice Potter Stewart admitted that such coercion “may well” be thought to “interfere” with dissenting employees’ First Amendment rights.
Stewart then explained, in the passage from his 1977 Abood v. Detroit Board of Education decision quoted in the next paragraph, why he regarded such “interference” to be justifiable:
A [forced] union shop arrangement has been thought to distribute fairly the cost of . . . [bargaining] activities among those who benefit, and it counteracts the incentive that employees might otherwise have . . . to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees.
So wrote Stewart. But in the view of today’s apologists for compulsory unionism, he really should have written something quite different. According to the emerging Big Labor consensus with regard to compulsory unionism, Stewart would have done better to write:
A [forced] union shop arrangement has been thought to distribute fairly the cost of . . . [bargaining] activities among those who benefit and those who are harmed, and it counteracts the incentive that employees might otherwise have . . . to refuse to contribute to the union that hurts them economically while benefiting other employees.
Exemplary of the new apologists for compulsory union dues and fees is Ben Spielberg, a former official with the National Education Association (NEA) teacher union affiliate in San Jose, Calif., and a research associate with the virulently anti-Right to Work and partially forced-dues-funded Center for Budget and Policy Priorities.
In a lengthy screed published November 20 by the Washington Post (see the link below), Spielberg bitterly denounces the plaintiffs’ case in Friedrichs v. California Teachers Association, a legal battle that is set to be heard by the U.S. Supreme Court some time in the second half of its 2015-2016 term.
The Friedrichs plaintiffs’ counsel of record is Michael Carvin of the Cleveland-based law firm Jones Day. They are 10 independent-minded California school teachers who have not joined the NEA-affiliated unions that wield monopoly-bargaining power in the districts where they work and do not think they should be forced to fork over fees to the NEA union or any of its subsidiaries in order to keep their jobs.
Drawing largely on recent High Court precedents argued and won by National Right to Work Legal Defense Foundation attorneys on behalf of public employees and home health care workers who resisted union-boss demands, Carvin and his associates contend that Abood was wrongly decided and forced fees for public employees violate the First and Fourteenth Amendments to the U.S. Constitution.
And one important part of the Friedrichs critique of Abood is that it wrongly assumed all public school teachers benefit economically from being subject to union monopoly bargaining.
In their September merits brief to the High Court, the Friedrichs plaintiffs drew on the NEA Handbook itself to demonstrate that Stewart’s evident assumption has proven again and again to be false:
Respondent Unions advocate numerous policies that affirmatively harm [many] teachers . . . . NEA considers any “system of compensation based on an evaluation of an education employee’s performance” to be “inappropriate,” and “opposes providing additional compensation to attract and/or retain education employees in hard-to-recruit positions.” (Citation omitted.) Teachers who care more about rewarding merit than protecting mediocre teachers could (indeed, should) reasonably oppose these policies. So too for teachers who specialize in difficult subjects (like chemistry or physics), but are trapped in union-obtained pay systems that stop them from outearning gym teachers.
Though the NEA Handbook itself affirms that the official policy of the union and its subsidiaries is to oppose higher pay for teachers in an array of cases in which school districts would likely be inclined to furnish it if given a free hand, Spielberg all the same insists in his verbal fusillade that the claim that “union-negotiated contracts might harm rather than benefit some nonmembers” is “debatable.” Perhaps later he can have a debate with the members of the NEA Representative Assembly who have voted again and again over the past 15 years in favor of the resolutions cited by the Friedrichs plaintiffs!
Even more outrageous than Spielberg’s agnosticism about a point that the Friedrichs respondents didn’t even dare to contest in their merits brief filed early this month is his dismissal of it, assuming “for the purposes of . . . argument” that it’s true, as a “red herring.”
Departing a great distance from the plain language of Abood, Spielberg goes on to claim that, as long as school employees as a collective are “better off” as a consequence of unionization, it is perfectly constitutional and fair for public policy to force educators who are made worse off by unionization and aren’t union members to pay union fees, or be fired from their jobs.
Echoing Spielberg, I would contend that his assertion, citing only a propaganda sheet from a forced union dues-funded “think tank” (not the one where he is employed), is highly “debatable,” and some time I would be glad to debate it with him.
Leaving that debate aside, do Spielberg and his fellow forced-unionism apologists expect the American public to warm up to their new, post-Abood argument for compulsory unionism:
In order to maintain “labor peace,” public employers must have the constitutional prerogative to force employees to bankroll an “exclusive” bargaining agent for negotiating activities that harm those employees. And if the employees don’t pay, they should be fired from their jobs.
Even assuming teacher union lawyers can convince five or more Supreme Court justices to accept such an incredible reading of the First and Fourteenth Amendments, a judicial victory upholding the permissibility of “forced union fees for harmful ‘representation'” would surely turn out in time to be a pyrrhic one for Big Labor.