Epstein on Friedrichs v. California Teachers Association

Another Assault on the Union Shop?
Richard A. Epstein
Ricochet.com
August 23, 2013

A recent story in the Washington Examiner reports on yet another assault against union power, this time in California, a stronghold of organized labor. The case, Friedrichs v. California Teachers Association, is yet the latest in a string of challenges to the venerable system of union representation that requires employees who are in a bargaining unit to contribute to the union coffers whether or not they choose to belong to the union. This is what is known as an agency-shop arrangement, also called an “organizational security agreement.”

That basic rule requiring all workers to pay union dues is subject to an important offset based on the 1988 Supreme Court decision in Communications Workers of America v. Beck, which held under the First Amendment that any dissident employees were entitled to carve out from their dues those moneys that were spent on the union’s political operations. The rationale was that the dues requirement in economic affairs prevents the individual worker from free-riding on the union’s efforts to secure higher wages and benefits, but that this rationale could not compel workers to contribute against their will to political activities to which they were opposed.

The nature of that division has always been difficult, and, as of late, there has been increasing concern about whether the line is maintainable -- or should be maintained. On one side stands the argument that, even on economic affairs, there is no direct alignment between dissenting workers and the union. Indeed, for many the idea of union solidarity is a myth. It is commonplace for some unions to adopt high risk/high return strategies, in which they are willing to take the risk of strikes or loss of position in order to push for higher benefit packages. That policy will favor workers with seniority (who are more likely stay on after job cutbacks) over junior workers, who will be the first to go. It will also favor workers who think the risk is worth the potential gain over those who prefer a steadier, if lower, stream of payments. There is, to say the least, something incongruous about forcing people to pay to implement bargaining strategies to which they are opposed