Free Speech vs. Compulsory Union Dues

Right From the Start

Right From the Start

Two years ago, in the aftermath of Harris v. Quinn, I wrote the following column. Last week the United States Supreme Court agreed to hear Friedrichs v. CTA which will deal precisely with the issue discussed in my column. There will be a lot of legalese and make believe bandied about by the lawyers and the politicians. It is timely to reiterate in laymen’s language what the issue is really about and why “free speech” must remain free.

Free Speech vs. Collective Bargaining (Non-legalese)

Last week’s column dealt with the United States Supreme Court’s recent 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. Since that column a number of people have raised the question with me as why there isn’t a balance between the concerns of unions that non-members should not get a free ride for the union’s bargaining efforts and individuals “free speech” and “rights of association (non-association).”

In its simplest form (non-legalese) free speech is a constitutional right while collective bargaining agreements are private contracts – even when they involve the government as one of the contracting parties. Free speech rights are a part of the Constitution’s Bill of Rights – the fundamentals of a free people – and were enumerated as a barrier to government (or others) impinging on those rights. Free speech rights include the rights of individuals to band together to promote a cause or a point of view (the right of association). Free speech rights also include the rights of individuals to decline joining in the promotion of a cause or point of view (the right of disassociation).

Free speech rights have some limitations – you cannot yell “FIRE” in a crowded theatre. Generally speaking, free speech rights can be waived by the person entitled to exercise them but they cannot be waived by another person – particularly by a person or group hostile to the views of that person.

And that brings us to collective bargaining agreements. First, the constitution can be said to guarantee the rights of people to voluntarily band together (freedom of association) in unions for purposes of advancing their common cause, including agreements relating to wages and terms of employment – a collective bargaining agreement – and even their political causes (comparable to a political party or a political action committee). But the limitation here is “voluntarily band together.” At issue in the Abood, Knox and Harris cases was whether a person could be forced to pay for the activities of a union which they refused to join.

The Abood case suggested that non-members should not get a free ride on the “collective bargaining” efforts of a union. The Knox and Harris cases noted that the Abood case was not decided in the context of an asserted “free speech” or “non-association” right by the non-member and, therefore, was not dispositive of those issues. In other words, the conflict between free speech rights and mandatory financing of unions by non-members was not decided in Abood.


So what is it that is so objectionable about the conflict between collective bargaining and free speech rights? On a macro basis one only has to look at Oregon’s public employee unions. Each election cycle the public employee unions receive over $140 million that is collected by state and local governments on an “involuntary” basis from the public employees and then remitted to the unions on a quarterly basis. I use the term “involuntary” because there is no individual authorization for such withholding by the public employees; rather the presumption is that employees must “opt out” of financial participation rather than opt in. The opt out requirements are burdensome and made more so by recalcitrant unions and even when successful apply only to a very small portion of the mandatory union dues – that portion of the dues that relate to amounts unions must report as “political expenditures.” There are two problems with that.

First, the amounts reported for “political expenditures” do not include all of the amounts the public employee unions expend on political activities. For instance, they do not include the amounts that are expended for polling, political education, candidate recruitment, voter registration, voter identification, voter turnout, or voter analysis or the costs associated with the legions of “volunteers” that turn out in support of Democrat candidates and causes. Oregon’s public employee unions expend virtually all of their money and effort on Democrats – so much so that they have become the virtual financial arm of the state Democrat party. (They do this to ensure that when the time comes to negotiate or renegotiate a collective bargaining agreement, the “management” that they must bargain with are the very people that the financed for election.)

There are Republicans and independents amongst Oregon public employees and while they make get relief from financing the “reported political expenditures” they do not get similar relief from financing the remaining political activities in which the public employee unions engage. Not only do they not get relief from such expenditures they are not even asked whether they agree with activities or the purpose of the activities.

And second, the public employee unions may actually engage in other forms of advocacy that non-members and even members who have not affirmatively consented find objectionable. For instance, during collective bargaining the unions may demand that their healthcare benefits include abortion procedures and euthanasia procedures – both of which may be legal in Oregon but are still objectionable on religious grounds by many. Or the unions may favor a seniority system for job security when individual members may support a merit system. Or the unions may favor standard pay effected only by years of service, while individual members may support pay based on contribution or demonstrable skill. Or the unions may oppose individual workplace displays of religious preferences while individual members may support a display of their religious beliefs. And despite their dissent they are not only required to finance such advocacy but to be identified as part of a group supporting such advocacy. Even worse, they are not even given the opportunity to voice their dissent because such positions are determined by the union leadership without notice or approval by the members or the non-members forced to financially support such union activities.

And finally, you can always contract away your free speech rights, but you cannot contract away someone else’s rights. In other words, while it can be said that union members can compromise their individual free speech rights in favor of the collective union speech, the same cannot be said of non-members (and even members) who are still forced to finance that with which they may disagree. And the recent cases of Knox and Harris have questioned whether you can contract away those rights using an “opt out” method. An “opt out” method assumes that unless you disagree you are deemed to agree. That would be fine if there was notice, opportunity to object and a timely procedure for opting out of associative or financial participation. There are no such provisions with regard to the public employee unions. The majority in the United States Supreme Court has suggested that the only means of ensuring against involuntary inclusion is the “opt-in” method – thus assuming that unless you agree you are deemed to not be included.

In the end Free Speech is free. It cannot be compromised by the acts of third parties. Even if those third parties are the financial arm of the Democrat party – the public employee unions.

Democrats and labor officials warn that if they are not able to impose mandatory membership and/or dues that it will spell the end of the union movement. Twenty-five states currently have right-to-work laws and unions (including both public and private sector unions) exist in each of these states. The difference is that in those right-to-work states the unions must compete for worker participation based upon a demonstrable benefit to be derived by the employee. Are there “free loaders?” You mean other than the union bosses? Absolutely. But the solution is not to deprive those who object to their rights of free speech and association. Rather the solution is for the unions to demonstrate their worth and that can be done by bargaining solely for the benefit of their members and leaving the rest of the employees to deal individually with management. In such a situation you may see that some workers will accept lower pay for greater benefits – particularly retirement benefits. Or you may see that others would accept higher pay and pay for their own benefits. Whatever the individual’s decision (wages and benefits or political participation) it will be their decision and not one that is forced on them by a handful of union bosses.

Free speech must remain free. There is no exception in the Constitution for Democrats or labor unions.


  • Bob Clark

    I think the right to work, naming your own price for your labor services, is more fundamental than the free speech aspect. It relates to the right to defend your self body, soul, and property. Being dependent on government subsistence to keep from physical death causes a loss of self worth and introduces a level of stress as to whether a government so hugely in debt can be counted on to maintain this subsistence.

    • WayneFecht

      in other words the right to bid against others with labor for sale for a job. just as employers bid against other employers for the labor. Unions are a price fix and prevent the free market process.

      • Eric Blair

        No. a union combines the power of the worker who may not stand much of a chance “to negotiate their pay” when they are one of a multitude. Unions can be as much a part of the free market system as a company.

        Ask yourself this.. how often, in larger companies, without union protection, do individual workers negotiate their own pay rate? What larger company would want the headache of literally hundreds of different pay scales for people doing the same job?

        • Local Yokey

          Why was local 11 decertified at Conway?

          • Eric Blair

            I have no idea, I’m not familiar with the issue. Have a link?

            I would guess, that the workers decided they didn’t want a union.. and since unions are democratic in structure.. the workers voted to not have one.

            Kinda gives lie to the idea that union members don’t have freedom of speech, don’t you think?

          • Local Yokey

            Employees at Conway fought the blah and won freedom from inane propriety.
            Your last statement, Eric Blair, evocative of a bean stalker member of society with a gigantisms aplenty but infertile when planted in down to earth terms.

    • Eric Blair

      “Being dependent on government subsistence to keep from physical death causes a loss of self worth… “

      Do you think being dependent upon government to protect your property from those that are stronger than you, or to help you get your products and labor to the market, or ensure that your drinking water is clean (along with providing it) also causes a loss of self worth?

      I think, Bob, that is one of the more poorly thought statements you have made.

  • Eric Blair

    However, for the sake of argument, Free Speech rights also do not exist on private property, correct? In my house, or my company, I can restrict the free speech rights of visitors and employees. Yes?

  • HBguy

    Things were so much better before unions. We could rent our children out as labor and take their pay. We could work as many hours as demanded or be fired. We could have our pay withheld by employers. We could be fired if we exercised our free speech.
    And the middle class was thriving. Some people could even afford indoor plumbing.
    Families were closer. Sometimes sleeping 4 to a bed.
    And of course laborers were free to negotiate their hourly pay with their employers. They’d just knock on the CEO’s door and ask for a half hour to negotiated for their pay. And if they couldn’t agree,the emploiyer would never just terminate someone from their job immediately, kick them out of employer provided housing, and put their kids on the streets.
    Yeah….the good old days.

    • Eric Blair

      and you didn’t have to worry about how to use your accrued vacation, or wonder if you were imposing a burden on your employer by calling in sick and getting paid when you had a 103 degree fever.

      Selfish union people.

      • cull organized mayhem

        Archaic in current terms. PERS grasps US by hook or by crook – and too, privates like the ILWU barring cost effective competition. FDR foresaw the scat coming.

        • Ach Toon

          Reich or wrong, Eric Blalring Nazionale Soshist?

    • C’mona Taka SulfaDose

      En thou HB Guy, aka Hugh G Ericonning, hoot cannot see the farce for the fleas in your innermoist lair?

  • unemotional

    More people should try self employment. It’s a lot more work and stretches the comfort zone but it’s considerably more satisfying, IMHO, than seeing oneself as only a worker for the MAN. Unfortunately it’s becoming a lost art

    • unemotional

      And as more folks opt to self employ, the labor market shrinks and the behemoth companies will find themselves having to pay more for the workers they need. As it is, big business can name its price because they know workers are too limited in their minds to other possibilities.

  • Steve

    I pay dues to the teacher’s union. They bargain for me to get a living wage, which I still do not have. But, if some guy wants to freeload and get the same raises I get without paying to the union, I say shame on him. Fair share is the only way. Pay your fare….you lazy peoples.

    • .

      Shill out and go cuss students like the Sandy S D pandies, MR role modele.

  • Sumit Bansal
    • .

      Twit, burning incensed candles in a lurch biasment of ISIS theology. Ye Hah-h-h-h-h!