Monday, February 26, 2018

The Agency Shop and Free Speech

Today the United States Supreme Court hears oral argument on whether or not to overrule Abood v. Detroit Board of Education [1], one of its previous cases from 1977 which involved a challenge to a Michigan statute allowing for “agency shop” arrangements between local governments and their employees. [2] Under agency shop arrangements, “every employee represented by a union— even though not a union member—must pay to the union, as a condition of employment, a service fee equal in amount to union dues.” The Court addressed the question of whether such an “arrangement violates the constitutional rights of government employees who object to public sector unions as such or to various union activities financed by the compulsory service fees.”

The soundness of the policy behind agency shop arrangements becomes clear when it is considered, first, that there is an undoubted efficiency behind having all employees within a bargaining unit represented by a single entity. As the Court pointed out,

“The designation of a single representative avoids the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment. It prevents inter-union rivalries from creating dissension within the workforce and eliminating the advantages to the employee of collectivization. It also frees the employer from the possibility of facing conflicting demands from different unions, and permits the employer and a single union to reach agreements and settlements that are not subject to attack from rival labor organizations.”

With these considerations in mind, it can be easily seen how permitting some employees to avoid making any contribution at all would place an unfair burden on a labor union.

“The designation of a union as exclusive representative carries with it great responsibilities. The tasks of negotiating and administering a collective bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones. They often entail expenditure of much time and money….The services of lawyers, expert negotiators, economists, and a research staff, as well as general administrative personnel, may be required. Moreover, in carrying out these duties, the union is obliged ‘fairly and equitably to represent all employees . . . , union and nonunion,’ within the relevant unit….A union-shop arrangement has been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become ‘free riders’—to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees.”  

But unions don’t just engage in collective bargaining. They also “spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective bargaining” representatives. And the Court in Abood held that “the Constitution requires…that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.”

And that is where the Court drew the line. Compelled contributions are constitutionally permissible, insofar as the funds “are applied to collective bargaining, contract administration, and grievance adjustment purposes,” but not so to the extent that the funds are used for political or ideological purposes.

That distinction is now being challenged. In the case now before the Court, Janus v. American Federation of State, County, and Municipal Employees, Council 31, one Mark Janus is asking the Court to overturn Abood.

“Janus’ argument in the Supreme Court for overturning Abood rests on the idea that, because issues like salaries, pensions and benefits for government employees are inherently political, agency fees – even if characterized as the costs of contract negotiations – actually finance speech that is intended to influence the government’s personnel policies. Therefore, he contends, requiring him to pay an agency fee is no different from requiring him to subsidize a group that lobbies the government.” [3]

His argument isn’t altogether trivial. Even issues that arise in collective bargaining can touch upon political and ideological concerns.

“To compel employees financially to support their collective bargaining representative has an impact upon their First Amendment interests. An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative. His moral or religious views about the desirability of abortion may not square with the union's policy in negotiating a medical benefits plan. One individual might disagree with a union policy of negotiating limits on the right to strike, believing that to be the road to serfdom for the working class, while another might have economic or political objections to unionism itself. An employee might object to the union’s wage policy because it violates guidelines designed to limit inflation, or might object to the union’s seeking a clause in the collective bargaining agreement proscribing racial discrimination. The examples could be multiplied.”

But the employee who has such concerns as these hasn’t really lost his First Amendment rights. He is free to give voice to his objections to the actions of the union representing him, both in private and in public. If he chooses to join the union, he is able to vote for the union’s leadership in order to the get the union to change its approach to such issues. Indeed, he is even able to vote to decertify the union should the time for such a vote arise. He may decide not to join the union, but that too is his choice. What he should not have the right to do is enjoy the benefits of union membership while declaring himself exempt from making any contribution toward it.

The situation is really no different than being compelled to pay taxes to a government, even though the individual taxpayer has policy objections to the direction of the government. The taxpayer has the right to vote for candidates for office who promote different policies, and express his objections to the policies that exist. At the same time, he should not be compelled to support any particular party or candidate, or participate in activities he objects to. But he certainly shouldn’t be exempt from paying his fair share of taxes while enjoying the benefits of public services and the common defense.

In Abood, the Supreme Court struck the right balance. It should not be overruled.