In all likelihood, the next major decision contemplated by the Supreme Court of the United States (SCOTUS) will be a revisiting of a case which ended in a split decision, brought on by the death of the late Justice Antonin Scalia. On March 29, 2016, the 8-person Court published a single line opinion of its decision on Friedrichs v. California Teachers Association, stating, “[t]he judgment is affirmed by an equally divided Court.” Since then, Justice Neil Gorish has been appointed and affirmed to the Court, and is all but guaranteed to sway the decision in the direction of upholding the First Amendment. Since then, a petition of writ of certiorari has been filed to SCOTUS to hear Janus v. American Federation of State, County, and Municipal Employees, Council 31, a case nearly identical in nature to the issues of Friedrichs.

To better understand the issues present in the Friedrichs and Janus cases, there are a few things that better place it into context. The history, economic principles, and constitutional rights involved are all important arguments that have been, and will be again, brought up during oral arguments to the Court.

A Brief History

Labor unions began most prominently in the United States as the Knights of Labor, which would eventually collapse due to poor organization. Despite its failure, the group paved the way for more successful ventures in labor representation. Most notably, the American Federation of Labor, started and led by Samuel Gompers in 1886, became titans of political activism and control. The American labor unions have enjoyed a rather protected status since the New Deal policies of President Roosevelt were implemented in the 1940s. The most notable of these was the Wagner Act of 1935, which guaranteed basic rights of private sector employees to organize into trade unions, engage in collective bargaining for better terms and conditions at work, and take collective action including strike if necessary. More ominously, the act also created the National Labor Relations Board, which conducts elections that can require employers to engage in collective bargaining with labor unions.

Prior to the Wagner Act, SCOTUS struck down collective bargaining in two landmark cases, Adair v. United States in 1908, and Coppage v. Kansas in 1915. In both situations, the Court determined that it was the right of an employer to contract with whomever he so desired, thus upholding the First Amendment right to freedom of association. In Coppage, specifically, the state of Kansas had enacted laws prohibiting the use of “yellow dog” contracts. These contracts were agreements between the employer and employee that the employee would not join a union in exchange for employment. On its surface, this may seem to give employers undue power over employees. However, this is not the case across the board, and any solution to it would be an abridgment of the right to freedom of association, an argument to be expanded upon in the next section.

In 1977 SCOTUS heard and decided the Abood case. Abood v. Detroit Board of Education proved to be a massively important case, matched in importance only by the controversy it would create. The decision did not affect private-sector unions, but public-sector. The argument made on behalf of the union was that non-union members still benefited from union projects and bargaining, and therefore would receive unjust enrichment if allowed to refuse to pay union dues. These employees were characterized as “free-riders” by the union counsel. In the end, Justice Stewart delivered the opinion of the Court, deciding that union dues could be compulsory to non-union members in the public sector. A compromise was reached, known rather simply as the “Abood Compromise,” which prevented non-union members from having their dues used toward political actions taken by the union, limiting funding by non-members to non-political action, thereby supposedly upholding each individual’s right to to freedom of speech and freedom of association, and also preventing undue enrichment to those who had not paid into the system. Since 1977, Abood has been the controlling doctrine governing public-sector union dues.

Stare Decisis

Stare decisis is a legal term which translates from Latin to mean “to stand by things decided.” Basically, it is the doctrine of using precedent when making a ruling. In the Friedrichs case, counsel for the union made the argument of stare decisis, citing Abood and claiming that precedent should be followed here, as well. While the doctrine sounds important, it has essentially been used as a political tool wherever it is most beneficial to the party wishing to preserve the status quo. In a perfect world, change comes when the society affected by it is ready to implement it, such was the case in Brown v. Board of Education, in which the Court overruled a previous decision held in Plessy v. Ferguson. This is one of the most recognizable cases of the Court abandoning stare decisis at a time in which it worked in concert with the times. Distinct from Brown, the Court in Roe v. Wade and in the more recent decision of Obergefell v. Hodges overturned dozens of court cases at the state and federal levels, while also federalizing issues traditionally left to the states (marriage being covered by the 10th Amendment, and the right to abortion being created out of thin air). The argument for precedent is one that changes hands rapidly, often argued for and against by the same people, depending on the issue at hand. It should not be taken too seriously.

Economic Freedom – Infinitely Simpler, and All but Forgotten

Right-to-Work

For the past 40 years, the Abood decision has been a massive boon to union funding. Most often, the argument is made that if union membership is not necessary, either by dues or by actual membership, unions will collapse, in turn dismantling the power of employees to come together to have some sort of leverage against the much more powerful employers. While it is true that union membership will decline in some instances (such as in Wisconsin under Governor Scott’s 2011 Wisconsin Act 10), but it is by no means a certainty. Nor is it a certainty that employers will revert to the practices of the late 19th and early 20th centuries, resulting in rampant abuse of employees. This is also a nigh impossibility in any real sense.

According to the United States Department of Labor, union membership (measured as a percentage of all individuals employed in the state) dropped in Wisconsin from 14.2% prior to the passing of Act 10, to 8.1% in 2016. It was the sharpest decline in union membership of any state in that same timeframe. Why the sudden decline? Act 10 prevented compulsory union membership in the private sector, allowing employees to work without having to be represented by the union applicable to them. Laws such as Act 10 are referred to as “right-to-work” laws. Currently, 28 states have enacted right-to-work laws, Kentucky becoming the 27th on January 1, 2017, and Missouri the most recent on February 6, 2017.

Right-to-work laws do not outlaw nor harm unions in any forceful way. Rather, they force unions to compete for membership. In a state without right-to-work legislation, the union has a complete monopoly on bargaining with employers, forcing non-members to be represented by it regardless of the non-member’s personal preferences. Prior to 1935, it was common law practice for union to have to essentially compete in the marketplace to entice people to join. The net outcome to competition in this field is that union executives are paid less, union dues go down in price, and individual rights are increased.

In 2016, the Bureau of Labor Statistics reported that the average wage for all CEOs in the United States was $194,350. This is due to the fact that the majority of CEOs in the country are the heads of small businesses, rather than the multinational corporations so often vilified by those who fall on the side of redistribution. On the other hand, labor union presidents made an average of $252,370 in 2016, plus another $31,000 in benefits, according to an analysis by the Center for Union Facts, which looked at federal labor filings for 192 national, state and local unions. In short, where labor unions have a legal monopoly making payment of dues a requirement, union executives take over the role of the “fat cat.”

Fiduciary Duties of the System

The Sherman Antitrust Act was passed by Congress in 1890 as a “comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade.” Its goal, as suggested by its title, was to outlaw the existence of monopolies, thus creating a more free-market system in which to operate, making it easier for small companies to compete against the larger ones. The fallacy at work in the Sherman Act, and subsequent antitrust laws, is the suggestion that monopolies are actually possible in the free market. As explained in this essay by Thomas E. Woods, Jr., a monopoly is nonviable in a competitive market, and can only exist through government intervention stagnating outside competition.

As stated, right-to-work laws break up the monopoly status enjoyed by unions made possible chiefly by New Deal era legislation. In essence, they work as laws that effectively repeal existing laws without taking them off the books. The result, then, is that antitrust laws end up affecting organized labor as a market, the same as would be the case in any other market. Where unions have a stranglehold on the right to represent workers, they likewise have a stranglehold on workers themselves. In the late 1980s, President Reagan’s Commission on Organized Crime revealed that at least five major international unions were still mob-dominated. Union bosses since 1935 have wielded power reminiscent of Tammany Hall’s own William Tweed. Where a union can actually cause an employee to lose his job for not paying into the union, the union has a remarkably disproportionate balance of power against both employees and employers.

The First Amendment Freedom of Association

The issue with requiring employers to bargain with labor unions is one which implicates the First Amendment of the US Constitution. It is not something that one would likely associate immediately with the amendment most commonly thought of as regarding the freedom of religion, speech, press, etc. The First Amendment also contains a provision protecting an individual’s right to the freedom of association. In short, a person has the right to associate or not associate with whomever he so chooses. In labor, this protects the rights of workers to choose where they want to seek employment, and to unionize; it also protects the employer’s right to employ and serve whomever he so chooses. The freedom of association is an important personal liberty which is often glossed over, or even openly and directly contravened.

Employer’s Right to Contract

The First Amendment guarantees one’s right to associate and to not associate with whomever they wish to. Included in this clause is the right to enter into consensual contracts, which is further shielded by the Fourteenth Amendment, stating that no person under the protections of the Constitution may be denied life, liberty, or property without due process of law. In labor, this manifests as the right of an employee to seek employment where he chooses, and of an employer to employee and provide service with whom he chooses. Where this right is abridged, the First and Fourteenth amendments are likewise truncated.

The right to contract is a legal doctrine that has been addressed over the years, and most notably in three SCOTUS cases from 1905 to 1955, in the form of Lochner v. New york, Nebbia v. New York, and Williamson v. Lee Optical. Throughout these cases, the right to contract was realized in such a way as to say it was always present, but not recognized. Forcing an employer to negotiate with a union violates this right, as does forcing a person to pay into a union that person does not wish to be a part of.

Freedom of Association

While the issue of contracts will be a large part of the upcoming Janus case, it is likely that the right to freedom of association more generally will be the crux of the argument for the moving party. Unlike the cases involving private sector unions and collective bargaining, public sector labor falls under the US Constitution, and is governed by it. The key argument in the private sector revolves around the economic aspects and comes with a less strict standard of scrutiny on the part of the Court. Any issue involving the First Amendment carries with it the strictest scrutiny, thus making the related arguments the more important ones to focus on.

Where an employee is required to pay into a union, despite not being a member, that person is being forced to associate against his will. Justice Stewart attempted to rectify this issue with the issue of free-riders by creating the Abood Compromise, disallowing unions to use non-member dues in a political manner. In Freidrichs, the Court dealt with two issues: (1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

The agency shop issue regarded the representation at bargaining of non-union members by the union. The second issue revolved around whether the default situation should be representation or non-representation. In its oral argument to the Court, counsel for Rebecca Friedrichs challenged, rightly, Justice Stewart’s compromise, noting that virtually everything the union bargains for is political in nature. From wages, to vacation time, to break room requirements, everything bargained for by a union is political in some way. Because monetary contributions are considered speech, this becomes an issue of the right to freedom of speech, as well.

Furthermore, compulsory representation by a union completely strips a person’s ability to choose what to bargain for. The major issue taken on by teachers’ unions, for example, is merit pay versus standardized pay. Merit pay is precisely the reason the teacher unions are voraciously against school-choice, as it creates a system in which parents have the ability to send their children to the school of their choice, altering the flow of money to schools, and requiring schools and teachers to perform in exchange for better pay. As is the case in any market, some will prefer merit pay to standard pay, as they believe their earning capabilities will be increased. Whichever way a union argues for, there will be people represented by the union, if required to be, who will not agree with the direction taken, and would prefer to bargain on their own.

Conclusion

Had Justice Scalia not passed away before rendering his decision in Friedrichs, it is a near certainty that we would not be having this conversation, as he would have made the 5 in a 5-4 decision upholding the First Amendment, and protecting the rights of workers, which is ironically what unions claim to do when justifying their existence. When Janus reaches is decided by the Court, it will be a necessary and incredible reversal of an unconstitutional decision reached in Abood. One can only hope that a decision is reached sooner rather than later. Unions serve a purpose, but they are not the benevolent entities they are so often revered as. It is an inherent right of every person to associate with whomever they choose, to enter into consensual contracts, and to speak in a way they see fit. Janus is certainly a bright spot in the near future for individual rights.