Mandatory Bar Doesn’t Aim to Prevent ‘Individual Attorneys’ From Getting ‘Better Terms Than Those Obtainable by the Group’


As I discussed last week in a blog post on this site (see the first link below), Friedrichs v. California Teachers Association, a potentially landmark case scheduled to be heard by the U.S. Supreme Court on January 11, has involved a remarkably rapid change in the legal strategy of proponents of compulsory union dues and fees in the government sector.

For decades, and even as recently as in the brief California Teachers Association (CTA) union bosses filed this April urging the High Court not to take up Friedrichs, Big Labor and its allies have sought to defend the constitutionality as well as the general appropriateness of firing public employees for refusing to bankroll a union on the never-substantiated assumption that ALL public employees somehow “benefit” from being under union monopoly control.

Even employees who unequivocally prefer to remain union-free are Big Labor “beneficiaries,” union lawyers implied or flatly claimed.

In their April brief, for example, CTA union lawyers falsely characterized the forced-fee scheme to which the independent-minded teacher plaintiffs in Friedrichs object in this way:

[It is] simply a requirement that a nonmember teacher who receives . . . additional compensation as a result of the Unions’ [bargaining] efforts . . . must pay a share of the Unions’ costs.

But in September, the plaintiffs’ attorneys entered into the record stark evidence from the handbook of the National Education Association (NEA), the CTA’s parent union, that monopoly NEA “representation” actually means LESS compensation for vast numbers of objecting and potentially objecting teachers.  Just for starters, the NEA union hierarchy, by its own account, “opposes providing additional compensation to attract and/or retain education employees in hard-to-recruit positions.”

And now, the Friedrichs respondents are claiming it actually doesn’t matter if a teacher who doesn’t belong to the union gets paid less as a consequence of being under union control — he or she should be forced to pay union fees anyway.

Respondent Kamala Harris, the union-label California attorney general, was especially blunt about this in the merits brief she filed last month: “Unions do have substantial latitude to advance bargaining positions that . . . run counter to the economic interests of some employees.” (See the second link below to read the whole thing.) But the law requires, Harris continued, that when the NEA, one of its subsidiaries, or another union opts to push for workplace policies that benefit some employees while affirmatively harming others, union negotiators must do so “in a reasoned and nondiscriminatory manner.”

In that case, how could any employees object to being forced to bankroll the union that harms them?

Subsequently, Harris and her team of lawyers invoked two Supreme Court precedents to defend their position that “the constitutionality of the system does not depend on whether every [forced] fee payer perceives a benefit from his [forced] financial contribution to the system.”

Significantly, neither of these precedents had anything to do with federal or state labor laws.  The first, Keller v. State Bar of California (1990), upheld states’ ability to require attorneys to join a state bar in order to practice law while also upholding attorneys’ First Amendment right to refrain from subsidizing bar associations’ political or ideological activities.

The Harris team also cited 2000’s Board of Regents of the University of Wisconsin System v. Southworth, in which a unanimous High Court found that a public university may use mandatory student fees to subsidize independent campus organizations without violating students’ First Amendment rights.

Unfortunately for Harris and teacher union officials, neither of these cases set a precedent for upholding forced union dues for harmful workplace “representation.” In the blog post reachable through the first link below, I explained why Southworth is actually a problem rather than a help for the Friedrichs respondents. Today I consider Keller.

As Chief Justice William Rehnquist explained in the opinion of the court in this 25-year-old case, in the roughly 30 states with so-called “integrated bars,” membership at the state level is mandatory for all practicing attorneys. Permissible mandatory bar membership dues in states like California, the chief justice noted, enable the association to advise the state judiciary with regard to “admission to practice, the disciplining of lawyers, [and] codes of conduct.”

Individual attorneys may disagree with the state bar about how to regulate their profession.  But the bar, unlike a labor union, does not seek to raise the compensation of one attorney at the expense of another, when both are admittedly carrying out their duties ethically and responsibly.

As Supreme Court Justice Robert Jackson acknowledged in his 1944 J.I. Case decision, a key function of “exclusive” union bargaining as practiced in the U.S. is to empower Organized Labor to prevent individual workers from obtaining “an [employment] agreement more advantageous” than the “collective agreement . . . .”  From the perspective of Jackson and the seven other justices who joined in his opinion, this is acceptable, because:

The practice and philosophy of collective bargaining look[] with suspicion on . . . individual advantages.

In contrast, the purpose of the mandatory bar is self-regulation of the legal profession, not obliterating “individual advantages” among attorneys. No opinion is offered here about whether or not statutes and regulations requiring attorneys to join the state bar are a good idea.

But at least one can say that, unlike the compulsory union fees being challenged in Friedrichs, mandatory bar fees do not pour salt in professional employees’ wounds by making financial support for the very organization that, in many cases, prevents them from earning higher pay a condition of keeping their jobs.

Unions with forced-dues and “exclusive” bargaining privileges routinely exercise the latter to prevent individual workers from obtaining “an [employment] agreement more advantageous” than the “collective agreement,” as Supreme Court Justice Robert Jackson acknowledged in his 1944 J.I.Case Co. v. National Labor Relations Board opinion. Integrated bar associations do not similarly help some lawyers at others’ expense. Image: Wikimedia Commons

Southworth Precedent Not Helpful For Forced-Union-Fee Proponents in Friedrichs Case

Brief of respondent Attorney General of California filed.