Forced Unionization and the First Amendment

Date: January 11, 2016

The U.S. Supreme Court today heard argument in the case of Friedrichs v. California Teachers Association, et al.  This case concerns Rebecca Friedrichs, a California teacher who for years has watched part of her pay check go to the California Teachers Association, a public union.  Sadly, like a tax, Ms. Friedrichs has no power to keep her hard-earned money from the union coffers.  Under California law, all public teachers are required to pay dues to the CTA for representing them in employment matters before the state government – activities commonly referred to as “collective bargaining.”

Ms. Friedrichs believes that the First Amendment allows her a freedom of association—meaning that she should not be forced to join or pay dues of any kind to CTA.  We agree, and in a few months we will learn whether a majority of the Supreme Court does too.

Friedrichs is one of the biggest cases the Supreme Court will hear this term and the biggest union case it has taken in recent memory.  Over the last few years, the Court has begun to rethink old precedents that held that “labor peace” and efficiency in bargaining allowed states, like California, to force employees into joining or financially supporting a union.  But now, the Supreme Court is considering whether to overturn Abood v. Detroit Board of Education—the 1977 case that upheld mandatory unionization in the public employee context. In doing so, the Court has finally moved from peripheral issues to squarely address the conflict between the First Amendment and labor interests. And, if oral argument at the Supreme Court is any indication, Abood may be history before the new school year starts in the fall.

What came through crystal clear this morning is that everything is a question of policy when it comes to public employees—their pay, standards of performance, mileage rates, etc. Tellingly, neither  the attorney representing the CTA , nor the Solicitor General of California—both defenders of the state’s mandatory union dues law—could come up with an example of an issue in “collective bargaining”, with public teachers, that would not impact public policies.  And that is the rub.  Mandating that public employees must pay dues to a union that may very well be advocating for policies with which they disagree is a clear violation of the First Amendment’s protection of freedom of association. 

Small businesses are eager to see public employees reclaim their First Amendment rights and for the Supreme Court overturn AboodBut why?  Small businesses care deeply about the outcome of the Friedrichs case because of its direct impact on their tax bill and because of the power public employee labor unions hold in state capitals across the country.  For years small businesses have watched well-funded public unions successfully elect legislator after legislator, who are then beholden to labor interests, and who inevitably return the favor by supporting generous benefit packages to the unions.  This endless cycle results in higher taxes and more regulation for small business and ordinary individuals who are not even at the bargaining table.

If the Supreme Court rules in favor of Ms. Friedrichs, it will be a victory for small businesses, all Americans, and the First Amendment.  The only losers will be public unions and the big state governments they support.

For more analysis of today’s argument, check out Ilya Shapiro’s commentary at Cato . And for more on why NFIB cares about this issue, check out our previous post: “Public Employee Unions Have Unfair Advantage.”

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