In an op-ed published this week regarding a landmark legal case about to be heard by the U.S. Supreme Court, Erwin Chemerinsky, dean of the University of California, Irvine School of Law and part-time pundit, gets one important thing right.
As Chemerinsky says, the High Court’s 1977 decision in Abood v. Detroit Board of Education — the precedent that is being challenged in the case at hand — is “based” on the “simple . . . premise” that employees who are subject to “exclusive” union bargaining, but choose not to be members, “benefit . . . from the union in their wages [and] their working conditions . . . .”
Justice Potter Stewart, the author of Abood, and the justices who joined with him did indeed rely on this bare assumption to justify upholding the constitutionality of state laws that force public employees who wish not to join a union to pay union fees, or be fired, even though such laws admittedly “interfere” with the First Amendment rights of dissenting employees.
Where Chemerinsky goes wrong is in claiming that this “union nonmembers benefit” premise is “undeniably correct.” Far from being “undeniably correct,” this premise is now utterly discredited. So discredited, in fact, that even one of the pro-forced unionism respondents in Friedrichs v. California Teachers Association (CTA), the challenge to Abood that will be orally argued before the High Court on Monday, has explicitly admitted it isn’t true.
In a brief she submitted to the Supreme Court last November, California Attorney General Kamala Harris, who along with officials of the National Education Association (NEA) union-affiliated CTA is defending the constitutionality of compulsory fees for union nonmembers, felt she had no choice but to admit:
Unions do have substantial latitude to advance bargaining positions that . . . run counter to the economic interests of some employees.
This is an implicit acknowledgement of the fact that, in government-sector forced-unionism states like California, public servants who wish to keep their jobs must pay union officials to advocate policies that affirmatively harm the unionized employees.
Harris went on to argue that there is nothing constitutionally suspect or untoward about state laws forcing government employees to bankroll a union that is harming them even as it advances its own institutional interests, as long as union bosses conduct themselves in what she characterizes as a “rational” manner.
This was how she opted to address the point, made by the plaintiffs in a brief a couple of months earlier, that the official NEA handbook itself explicitly states that the union hierarchy considers “any system of compensation based on an evaluation of an education employee’s performance” to be “inappropriate” and also “opposes providing additional compensation to attract and/or retain education employees in hard-to-recruit positions.”
Harris’s attempt to justify forced union dues for harmful “representation” may not ultimately convince a Supreme Court majority to uphold Abood’s result, but it at least has the merit of acknowledging an important, albeit inconvenient fact.
Unfortunately, Chemerinsky and other Big Labor pundits from inside and outside the legal community are opting against candor. Ignoring the irrefutable evidence from the NEA handbook cited by the plaintiffs and the blunt words of the union-label California attorney general, he and a wide array of commentators of his ilk continue to claim, in addressing the Friedrichs case, that all public employees subject to monopoly unionism “benefit” thereby.
As we have just seen, this simply isn’t true, and there is little hope for Big Labor at this point that five Supreme Court justices will even agree to pretend its true.
It’s time for Chemerinsky et al to ask themselves, if Kamala Harris can handle the truth about the impact of union monopoly bargaining on employees who don’t want a union, then shouldn’t we be able to handle it, too?