- - Tuesday, July 28, 2015

The Supreme Court recently decided to hear Friedrichs v. California Teachers Association, a case that asks the Court to overrule its 1977 decision in Abood v. Detroit Board of Education.

In Abood, the Court upheld the right of government employers and unions to enter into contracts that require all employees represented by the union to pay their fair share of the costs of representation, but not the costs of other union activities. The doctrine of stare decisis, meaning to let the decision stand, counsels the Court to overturn precedent only in extraordinary circumstances. No such circumstances exist in this case. The constitutional arguments for overturning Abood are the same arguments that the Court rejected thirty-eight years ago. In addition, since Abood, Supreme Court decisions have allowed even greater restrictions on the speech rights of government employees, providing further support for the Abood decision.

What justifies allowing contracts that charge employees who do not desire to pay the cost of union representation? First, it is important to understand that the union is compelled by law to represent all employees in the bargaining unit, once a majority selects the union as its representative. Thus, we might analogize paying representation fees to paying taxes to a government led by the majority’s choice. A major justification for both taxes and fair share fees is the free rider or collective action problem. Because the law requires the union contract, with its pay, benefits, and job protections, to apply to all, some will choose not to pay for the negotiation costs, free-riding on the payments of others. Ultimately, so many may choose to free ride that funds for representation are insufficient. Similarly, roads are open to all. If the taxes that build roads were optional, there would be a strong incentive to free ride, ultimately resulting in the government’s inability to provide and maintain roads.

The union must represent all employees in the bargaining unit because the United States, unlike most other developed countries, has adopted the system of exclusive representation. We do not have competing unions representing different workers doing the same job. This system simplifies labor relations for employers who have to deal with only one union and one contract for each bargaining unit. It avoids the disruptive process of ongoing campaigning by unions, competing for members by providing greater benefits than other unions representing employees in the same job classifications. But with this choice comes mandated fair representation of all employees and the related collective action problem discussed above. The solution is to allow unions to charge for their representational activities.

While this does require some employees to pay fees to unions that they prefer not to support, they are not without remedy. Unions can be removed as representative by majority vote. Also, all employees are free to voice their opposition to the union, and to its positions and actions. Despite their opposition, the union must continue to represent them fairly and in good faith.

Since Abood was decided, Supreme Court doctrine has further limited the speech rights of government employees to preserve the government’s ability to provide effective and efficient service. First, to be protected, a public employee’s speech must address a matter of public concern. Speech unrelated to matters of public concern is unprotected, and employees may be disciplined by the employer for such speech. In 2011, the Supreme Court found that a police chief’s complaints about his termination and pay were not matters of public concern. Similarly, the Court found that an employee’s questionnaire about morale, supervision and a grievance committee was not a matter of public concern. The speech that fair share fees support, negotiation for compensation and working conditions and enforcement of the contracts governing those subjects, is similar.

The second requirement for speech protection is that the government employee must be speaking as a citizen, not an employee, to escape discipline for speech. The Supreme Court has reasoned that the government employer should be able to control the speech of its employees when they speak pursuant to their job duties.

Even if these two requirements are met, the employer’s interests in providing efficient service may outweigh employees’ interests in speaking as citizens on matters of public concern. In this case, the government’s interest in the system of exclusive representation outweighs any limited infringement on employee speech required by fair share payments, particularly given the employees’ freedom to speak in opposition.

For all of these reasons, the Court should not take the extraordinary step of overturning a decision that employers, employees, and unions have relied on for thirty-eight years.

Ann C. Hodges is Professor of Law at the University of Richmond where she teaches and writes about labor and employment law.

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