Public Employees Deserve First Amendment Freedom

Geoff used to subscribe to Sports Illustrated.

Since he decided not to take the magazine, he no longer has to pay its subscription fee.

Overwhelmingly, folks agree that people should be free to make the perfectly sensible decision not to buy something they don’t want.

But in their jobs, especially in the public sector, many Americans are denied this right by labor unions and their political allies. They are compelled to pay for union representation whether they want it or not, or at least to pay to support the political positions pushed by unions in collective bargaining and other activities. Thus, they’re not only deprived of their natural right to market freedom, they’re also deprived of their First Amendment rights not to back positions they oppose and not to associate with organizations they don’t want to join.

It’s also illegal for them to negotiate directly with their bosses for raises or changes in working conditions. Only union officials, acting as the “exclusive bargaining agent,” may do so.

Rebecca Friedrichs, a third-grade California teacher, and eight colleagues sued their state teachers’ union in a case that reached the U.S. Supreme Court this week. Friedrichs has had union dues forcibly withheld from her paychecks even though she doesn’t want to be a union member.

She points out that the union doesn’t represent her views and instead uses her money to advocate positions she opposes. She wants to see her opportunities for raises or promotions be based on merit, not seniority or rules the union negotiates.

Union bosses have lived on coercion from the start. They claim that all employees benefit from a union contract and therefore should be forced to pay dues.
In 1935, passage of the National Labor Relations Act (NLRA) gave unions in the private sector very broad coercive powers. If union leaders could convince a simple majority of workers at a business to join the union – and their methods of persuasion weren’t always scrupulous – then the employer was legally obligated to negotiate toward a union contract. And all workers became subject to that contract and forced to pay union dues.

Nearly identical language had been included in the National Industrial Recovery Act two years earlier, but the Supreme Court struck it down as unconstitutional. Frustrated, President Franklin Roosevelt pushed the language back through Congress and threatened to expand the Court and pack it with judges who would uphold his preferences if justices struck them down again. The Court relented in an ordeal has since been called “The Stitch in Time that Saved Nine” because it preserved the nine-member court.

Even Roosevelt opposed unionization of government, however, and it wasn’t until decades later that states passed legislation authorizing similar powers for union bosses in the public sector. Congress also amended the NLRA in 1947, allowing states to pass right-to-work laws. These laws say unions and employers can’t make paying union dues a condition of employment. Exactly half the states have them.

As a government employee in non-right-to-work California, Friedrichs is challenging a body of law that has previously placed the Court in existential crisis mode. Nonetheless, comments made by Supreme Court justices during oral argument this week indicate that a majority may finally be ready to shake off Roosevelt’s old threats and assert workplace freedom for government workers.

Rolling back the coercive powers of unions will benefit both individual public employees and the broader public interest. Once installed, union bosses hold a monopoly power over their members that lets them be non-responsive to real member needs and interests. Instead, they can use their privileged position to enrich themselves off their members. Former Clark County teacher union boss John Jasonek made $625,000 annually.

Allowing collective bargaining in the public sector also essentially sets up a special interest – those unions – as the equal to the rest of society and lets their agendas prey upon the broad public interest. This has allowed government unions to become the tail that wags the dog in politics and public policy, pursuing the exotic left-wing political agendas of union bosses.

If the Court reins them in this time, it will make a huge reform that will benefit not just Rebecca Friedrichs, but all of society.

Ron Knecht is Nevada State Controller. Geoffrey Lawrence is Assistant Controller.