In Friedrichs v. CTA, Supreme Court Can Strike a Blow for Free Speech


Oral argument in one of the most important Supreme Court labor cases in years is set for January 11, with potential major implications in the one area where unions remain strong—government work.

The case, Friedrichs v. California Teachers Association, was brought by a California school teacher who objects to paying for representation she doesn’t want to an organization that pushes a political agenda she doesn’t support. The plaintiff, Rebecca Friedrichs, seeks a remedy to unions’ ability to compel non-members at a unionized workplace to pay for union representation.

Unions collect those non-member payments, known as “agency fees,” in lieu of full-fledged union dues, supposedly to address what they call the “free rider” problem of the union having to represent non-members.

In the realm of government employment, the Supreme Court tried to address this by requiring non-members to pay the union only for the expense of representing them, not for politics or other purposes, in its 1977 decision in Abood v. Detroit Board of Education.

However, collective bargaining between a government entity and a union is inherently political because it involves making public policy decisions through the allocation of government funds. As the Friedrichs cert petition notes, “Such spending necessarily requires either spending less on other public programs or raising additional public revenues—either of which is an important public issue.” (p. 17) The petition further notes:

That is particularly true for California, where unfunded pension liabilities for retired public workers have ballooned in recent years to $198 billion, $74 billion of which is attributable to the State’s retired teachers alone. … And those union-negotiated benefits for retirees are now consuming the increased revenues derived from tax increases and higher school-district contributions that were imposed specifically to address the education-funding shortfalls. (p.18)

Therefore, public sector collective bargaining can influence government policy just as effectively as electoral politics and legislation.

Compelled subsidization of a union’s efforts to have public officials enshrine union-preferred policies in a binding contract is thus just as impermissible as the compelled subsidization of a union’s efforts to have public officials enshrine those policies in a binding statute. This is particularly obvious in California because the Respondent Unions speak to the government about the same topics in both contexts. Numerous statutes that the Respondent Unions lobbied to obtain address topics within the scope of collective bargaining, including teacher tenure, seniority preferences in layoffs, and termination procedures. (pp. 19-20)

Moreover, in the public sector, collective bargaining generally has an upward ratchet effect on labor costs, since government representatives sit on both sides of the table.

Of course, collective bargaining is just one of the ways in which government employee unions wield influence. They also are no slouches when it comes to direct political giving.

For more on public sector unionism, see here and here.