A right to free ride at union expense?

Sometime in 2017, a new U.S. Supreme Court justice will take the bench and fill the vacancy created by the death last year of Justice Antonin Scalia. Sometime thereafter, the court will almost certainly reverse nearly 40 years of precedent and rule that the First Amendment prohibits provisions in public-sector collective-bargaining agreements requiring all covered employees to compensate the union for the costs associated with the union’s negotiation and administration of that agreement. That ruling will impact public-sector unions, employees and employers in Rhode Island and Massachusetts, all of whom operate under state laws that currently authorize those provisions.

State law determines whether and to what extent public employees have the right to select a union and insist that their employer bargain with that union. (Federal law governs these issues in the private sector). In both Rhode Island and Massachusetts, public employees have the right to unionize and to bargain collectively with their employers.

Moreover, laws in both states permit provisions in any resulting collective-bargaining agreement that require all employees covered by the agreement to pay their share of the costs incurred by the union when engaged in activities related to collective bargaining. These “fair-share” provisions prevent employees from accepting the benefits of the union’s work without paying for it.

In 1977 (in Abood v. Detroit Board of Education), the Supreme Court rejected a blanket First Amendment challenge to fair-share provisions in the public sector. The law remained stable for almost 40 years. But in 2014, in a case the court decided on other grounds (Harris v. Quinn), five justices (Roberts, Thomas, Kennedy, Alito and Scalia) made it clear they were eager to overrule Abood. Indeed, the court accepted certiorari in a case that presented the issue the following term. That case, Friedrichs v. California Teachers Association, was argued in January 2016. During that argument, Justice Scalia insisted that the First Amendment rights of public employees were more robust than those of employees in the private sector because in the public sector “what is bargained for is, in all cases, a matter of public interest. And that changes the … situation in a way that that may require a change of the rule.”

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Justice Scalia died before the court issued its opinion in Friedrichs, a 4-4 decision that left the lower court’s ruling following Abood in place. Given President Donald Trump’s past statements about whom he would likely nominate for the court, that justice would provide the fifth vote to overrule Abood.

Abood’s demise could deliver a serious blow to the financial health and power of organized labor. Private-sector union density is now under 7 percent. (It has been steadily declining from a high of approximately 35 percent in the 1950s). Public-sector union density is in the 35 percent range, but the power of those unions would be reduced if their funding dried up as a result of free riding. This matters because a healthy labor movement can help counter the strong economic and political forces that lead to increased income inequality.

Finally, do not be fooled. Opponents of organized labor, in a stroke of public relations genius, have effectively but inaccurately described the struggle over the right of employees to free ride as a struggle over their “right to work.” What is actually at stake is exceedingly important, but it is not about anyone’s right to work. •

Michael J. Yelnosky is dean of the Roger Williams University School of Law.

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