The End of the Agency Shop for Public Employees?

Right From the Start

Right From the Start


As the government of President Barack Obama steers a steady course towards government intrusion in all aspects of life, the United States Supreme Court appears to side instead with individual rights and liberties guaranteed under the Bill of Rights. Mr. Obama has now suffered nine straight defeats at the hands of the Supreme Court. It is both an administrative rebuke to Mr. Obama as well as a personal rebuke to his claim to be the “constitutional professor in the Oval Office.”


But the most telling of these over the long term may well be the decision in Harris v. Quinn. This is the case in which the court ruled that the Service Employees International Union (SEIU) could not require individuals who received public funds for providing home health care services to relatives to join or pay dues to the public employees unions. That should have been a “no-brainer” even for a public employees union as aggressive and myopic as SEIU.

But it is less the outcome of the decision than it is the rationale that may well spell the end of compulsory union membership or payments for public employees.


The unions have historically relied on a 1977 Supreme Court decision entitled Abood v. Detroit Board of Education tojustify compulsive membership and/or financial participation in employment subject to a collective bargaining agreement. In essence the court agreed that nobody should get a free ride for the benefits derived from a collective bargaining agreement. What the Supreme Court ignored in that decision was the First Amendment rights of individual members, including the free speech rights and the right of association (or disassociation). It wasn’t that the court suggested that collective bargaining rights trumped First Amendment rights, it was just that the decision was not rendered against a backdrop of asserted First Amendment rights. For those of us who are actual students of the constitution rather than occasional lecturer, the Abood decision has always been suspect.

The first crack in the ill-advised notion that Abood was dispositive of the compulsive membership and/or mandatory financial participation came in Knox v. SEIU (2012). The Knox case involved a special assessment made my SEIU to fund political activities in California. It was done without notice and without the right of non-members to opt out. Predictably, the court ruled that violated First Amendment rights of non-members and that SEIU should have provided notice and the right to opt out. But it is the dicta of the case that is unique and practically invited an additional challenge to the whole concept of an “agency shop” for public sector employment. Judge Alito goes at great length to discuss the history and rationale for the First Amendments “free speech and press” clauses:


“The First Amendment creates “an open marketplace” in which differing ideas about political, economic, and social issues can compete freely for public acceptance without improper government interference. . The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of . . . The First Amendment protects “the decision of both what to say and what not to say” (emphasis deleted)). And the ability of like-minded individuals to associate for the purpose of expressing commonly held views may not be curtailed. “Freedom of association . . . plainly presupposes a freedom not to associate.”

The court then went on to discuss the nature of “funding” others free speech rights. Justice Alito discussed a case involving compulsory payments by mushroom growers to fund generic advertising urging the use of mushrooms. United Foods objected to the assessment on the grounds that the advertising did not reflect its views and that funding it was a violation of its First Amendment rights. Justice Alito noted:


“A large producer objected to subsidizing these generic ads, and even though we applied the less demanding standard used in prior cases to judge laws affecting commercial speech, we held that the challenged scheme violated the First Amendment. We made it clear that compulsory subsidies for private speech are subject to exacting First Amendment scrutiny and cannot be sustained unless two criteria are met. First, there must be a comprehensive regulatory scheme involving a “mandated association” among those who are required to pay the subsidy. Id.,at 414. Such situations are exceedingly rare because, as we have stated elsewhere, mandatory associations are permissible only when they serve a “compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts, supra, at 623. Second, even in the rare case where a mandatory association can be justified, compulsory fees can be levied only insofar as they are a “necessary incident” of the “larger regulatory purpose which justified the required association.”

And then Justice Alito got to the heart of it by questioning, not the decision but the application of the decision in Abood:

“When a State establishes an “agency shop” that exacts compulsory union fees as a condition of public employment, the dissenting employee is forced to support financially an organization with whose principles and demands he may disagree.” Ellis, 466 U. S., at 455. Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, see Tr. of Oral Arg. 48-49, the compulsory fees constitute a form of compelled speech and association that imposes a “significant impingement on First Amendment rights.” Ellis, supra, at 455. (Emphasis supplied)”


In the end, Justice Alito suggested, but the court did not rule, that provisions allowing an “opt out” by unions, particularly public employee unions, may be insufficient:

“Similarly, requiring objecting nonmembers to opt out of paying the non-chargeable portion of union dues-as opposed to exempting them from making such payments unless they opt in-represents a remarkable boon for unions. Courts “do not presume acquiescence in the loss of fundamental rights.” College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 682 (1999) (internal quotation marks omitted). Once it is recognized, as our cases have, that a nonmember cannot be forced to fund a union’s political or ideological activities, what is the justification for putting the burden on the nonmember to opt out of making such a payment?


“Although the difference between opt-out and opt-in schemes is important, our prior cases have given surprisingly little attention to this distinction. Indeed, acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.”

After a short history of the lack of attention given to the opt-in/opt-out controversy, Justice Alito signals his view:

“Contrary to the view of the Ninth Circuit panel majority, we did not call for a balancing of the “right” of the union to collect an agency fee against the First Amendment rights of nonmembers. 628 F. 3d, at 1119-1120. As we noted in Davenport, “unions have no constitutional entitlement to the fees of nonmember-employees.” 551 U. S., at 185. A union’s “collection of fees from nonmembers is authorized by an act of legislative grace,” 628 F. 3d, at 1126 (Wallace, J., dissenting)-one that we have termed “unusual” and “extraordinary,” Davenport, supra, at 184, 187. Far from calling for a balancing of rights or interests, Hudson made it clear that any procedure for exacting fees from unwilling contributors must be “care-fully tailored to minimize the infringement” of free speech rights. 475 U. S., at 303. And to underscore the meaning of this careful tailoring, we followed that statement with a citation to cases holding that measures burdening the freedom of speech or association must serve a “compelling interest” and must not be significantly broader than necessary to serve that interest.


* * *

“By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.”

And all of this is particularly true with regard to public employee unions who have opted to focus more on the participation in (and in Oregon’s case, the domination of) politics than the traditional roles of unions in organizing and collective bargaining. The public employees unions realize that government, unlike private sector management, need not be the balancing force in traditional labor-management relations if they (the unions) elect the “management team.” The public employee unions extract over $140 Million each election cycle from public employees – all of it dutifully collected and remitted by the organs of state and local government. In Oregon the public employee unions are, in fact, the financial arm of the Democrat party – a party which now controls every statewide elected office and both house of the legislature. As the unions sit down to bargain with government “management” they are negotiating with the very people to whom they contributed substantially for their elections.

It is that relationship that the Supreme Court has recognized as “suspect” and for which it has expressed its concern over the impingement of Free Speech and Right of Association. And it is that relationship which the Supreme Court has suggested that an “opt-out” provision is insufficient.


That point was reiterated in the new Harris v. Quinn decision:

“In upholding the constitutionality of the Illinois law, the Seventh Circuit relied on this Court’s decision in Abood supra, which held that state employees who choose not to join a public-sector union may nevertheless be compelled to pay an agency fee to support union work that is related to the collective-bargaining process. Id., at 235–236. Two Terms ago, in Knox v. Service Employees, 567 U. S. ___ (2012), we pointed out that Abood is “something of an anomaly.” Id., at ___ (slip op., at 11). “‘The primary purpose’ of permitting unions to collect fees from nonmembers,” we noted, “is ‘to prevent nonmembers from free-riding on the union’s efforts, sharing the employment benefits obtained by the union’s collective bargaining without sharing the costs incurred.’” Id., at ___ (slip op., at 10) (quoting Davenport v. Washington Ed. Assn., 551

U. S. 177, 181 (2007)). But “[s]uch free-rider arguments. . . are generally insufficient to overcome First Amendment objections.” 567 U. S., at ___ (slip op., at 10–11).”

For those of you forced to fund the Oregon Democrat Party through compulsory union members and/or financial support, have faith – hope and change are on the way. Hopefully the next decision of the United States Supreme Court will end the compulsory membership requirements of the agency shop for public employees.