Bench Memos

Abood Back in the Cross Hairs

On Monday, January 11, the U.S. Supreme Court will hear oral argument in Friedrichs v. California Teachers Association, a potentially momentous case that challenges the constitutionality of “agency shop” clauses in public-sector union contracts, which require all employees in the bargaining unit to financially support the union. The seminal SCOTUS decision on this issue, Abood v. Detroit Board of Education, 431 U.S. 209 (1977) was subjected to withering criticism in Harris v. Quinn, 573 U.S. ___, 134 S. Ct. 2818 (2014), leading some observers (me included) to speculate that the Court may now be willing to overrule Abood altogether.

Abood applied the body of law dealing with compelled support of unions developed in the private sector under the National Labor Relations Act and Railway Labor Act (which I discuss here and here) to government employees, without adequately considering the many important differences between the private and public sectors. As a personal note, my interest in Friedrichs is heightened by the fact that one of my first published articles argued that Abood was incorrectly decided. See Union Security Clauses in Public Sector Labor Contracts and Abood v. Detroit Board of Education: A Dissent, 31 Labor Law Journal 539 (1980).

As we witnessed recently in Wisconsin, which essentially enacted “right to work” for most public employees, many workers will decline to join or pay dues to unions unless compelled to do so. Recognizing a First Amendment objection to such compelled support would greatly diminish the political influence of public-sector unions, which currently dominate the ranks of organized labor. For that reason, Friedrichs is one of the most important cases to be heard this Term.

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