NFIB Weighs-In at the Supreme Court: Public Employee Unions Have Unfair Advantage

Date: September 24, 2015

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It remains to be seen what other high-profile cases the U.S. Supreme Court will hear in its upcoming term. But so far the big blockbuster looks to be Friedrichs v. California Teachers Association, in which the Supremes will decide whether the First Amendment prohibits states from forcing public employees into joining labor unions. The case has already generated a great deal of attention. Not surprisingly, Big Labor is up-in-arms. And the National Federation of Independent Business has weighed-in explaining why the case is also a big deal for the small business community.

Previously, the NFIB joined with the Cato Institute in urging the Supreme Court to take on this issue in Harris v. Quinn. In that case the Supreme Court held that state governments cannot deem private workers to be “public employees” simply for the purpose of compelling them to join a public employee union. That was a victory for independent businesses. And NFIB Legal Center has been working to enforce the Harris decision in states that seem bent on ignoring the ruling. But as we argued in Harris, the Supreme Court could have gone farther.

Ideally the Court would have simply taken the occasion to reverse its 1977 decision in Abood v. Detroit Board of Education—which held that public employees can be compelled to join (or financially support) a union in the interest of “labor peace.” We forcefully argued in Harris, that the Abood decision was wrongly decided, and that its high-time the Court should reevaluate its assumptions in that case. For one, Abood principally justifies compelled unionization in the interest of preserving labor peace, but the Court was borrowing from Commerce Clause cases that had said “labor peace” is a compelling enough justification for federal regulation of labor relations. The Abood Court simply failed to seriously consider the issue on First Amendment grounds, which clearly prohibits compelled speech and forced association in the absence of a truly compelling state interest—and only then to the extent it may be said that there is no less offensive way for the state to achieve its ends.

We were admittedly swinging for the fences in Harris. But we may have helped wet the Court’s appetite for the issue because, on the heels of that case, the Supreme Court granted certiorari in Friedrichs—this time squarely addressing the First Amendment question. Since then we’ve seen a flood of “friend of the court” briefs from labor unions, public interest advocacy organizations (from all sides of the political/ideological spectrum), and from various other industry groups. In total, 24 different amicus briefs have been filed—many of which represent multiple groups or individuals.

So why do so many care about Friedrichs? And why does NFIB care specifically?

We care because the Supreme Court is now poised to overturn its decision in Abood—the decision that originally made unions powerful. So long as Abood stands, states can continue to compel public employees to financially support public employee unions—which inevitably advocate for more government programs, more government spending, higher taxes and more regulation. California is a prime example. Public employee unions run that state, and demand unquestioned loyalty from elected representatives. Public employee unions are so strong in California that they have an effective stranglehold on policy discussions, therein shutting out other voices that—like the voice of small business—advocate for smaller government, lower taxes, and less red-tape.

Of course many public employees disagree with their unions on issues they advocate on, and do not wish to be forced to financially support the union’s political messaging. Unfortunately it’s impossible to really separate political from non-political union activities when we’re talking about a public employee union because—in representing the employees of a public institution—they are inherently political in all things they touch. So whereas it’s generally possible for a union representing private employees to divide its activities between “political” (such as lobbying for a bill) and “non-political” (such as negotiating for higher wages with a private employer), public employee unions are inevitably wading into political waters in all matters. To be sure, they are constantly advocating for the institutional interests of a governmental entity.

This really gets to the heart of the problem. Government is supposed to represent the interests of the People—not its own institutional interests. But, when we enable a union to force public employees to financially support its activities, we have effectively made the union a de facto extension of the government. And when given a lobbying arm, the government will inevitably lobby for its institutional interests. That means bigger government: more bureaucracy, more spending, more taxes, and more regulation. More-more-more!

All of that is bad for small business. We know because NFIB members tell us. According to the NFIB Research Foundation small business owners are most concerned with high taxes, and over-regulation.

It is easy to see how the Leviathan gets out of control quickly when states are allowed to compel unionization of public employees. Of course a win in Friedrichs won’t automatically undo all of the antagonistic policies Big Labor has forced on small business. But it would at least level the playing field somewhat. It would mean that public employee unions would not automatically have boat-loads of cash for their political war chest(s). They would have to convince their constituents of their merit, just like any other association must. To be sure, NFIB would never dream of asking the government to force small businesses to join and support our cause because we believe that we must earn support from our members the old fashioned way—through honest, hard work. And of course, the only way to ensure that you really are responsive to your members is to give them a legitimate option to opt-out—which is what we hope the Supreme Court will allow for public employees going forward. 

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