Saturday, January 02, 2016

The free speech angle on right to work is a ruse

On January 11th, the Supreme Court of the United States will hear Friedrichs vs California Teachers Association, a case concerning the constitutionality of agency fees paid by public employees for union representation. This is a case brought by Rebecca Friedrichs and other plaintiffs for relief from having to pay those agency fees and for protection of their First Amendment rights.

There are some who would claim that this is all about money, money, money. As if money is speech.

While it might be convenient to frame the case as a free speech case, in my view it is not. This is a contract case, nothing more. Not only is it a contract case, the Justices will have an opportunity to break decades of settled law if they rule in favor of the plaintiffs.

While some would like to emphasize the damages sustained by people who object to the agency fees and be forced to pay them to keep their job, it is important to remember that people have a right to collective bargaining.

Collecting bargaining means contracts and lawyers write contracts. Experts review the contracts to make sure they are sound. Even Justice Antonin Scalia agrees that professional services for union representation costs money. The Friedrichs case is not really about eliminating the need for public sector employees to pay for "political" activities and services performed by the union. That was already decided in 1977 in Abood v. Detroit Board of Educatio. Since the political use of the fees has already been settled, this isn't about free speech. This is about gutting the ability of unions to fund themselves.

As noted in the SCOTUS Blog, eliminating the fees for non-members would force a wave of renegotiation of thousands of contracts and allow free-riding. Free-riding in this context means that non-union members get the benefit of union scale compensation and other negotiated benefits without having to pay for them. This is a violation of the right to contract, a right protected by the Constitution. See article 1, section 10. The right to contract is one of the core protections provided by the Constitutions and The Founders found it necessary to put it in the first article.

Free-riding is a simple concept. Imagine that you're on a street corner and you hail a cab. You get in and give the destination, but just as you're ready to leave, someone else jumps in for the ride. Your unwelcome guest claims a right to ride along with you without paying the fare. That is what Friedrich and her cohorts are trying to do to a union.

Unions often seek exclusivity in their contracts and they need adequate compensation for their services. You're either a union shop or not. You're either a member or not. If you're not a member, should you be entitled to union scale compensation, negotiated by a profession team in a collective bargaining agreement? I say no.

The debate in public discourse over union fees has shifted lately to emphasize the free speech rights of the non-members, yet fails to address the contract rights of the union members. Unions are a free market response to an environment already hostile to workers. They are a requirement to maintaining a necessary balance between employers and workers. They help to ensure that when productivity gains are made, that employees have an opportunity to enjoy the fruits of their labors.

Wages have been stagnating for 40 years, and the people who own capital have been largely successful in decoupling productivity from wages. This attack on the right to contract by Friedrich and her associated plaintiffs is just one more attempt to chip away at, and eventually eliminate collective bargaining, everywhere. It is an attempt to assert minority power over a majority, clothed in individual rights.

While a ruling against the unions would not completely eviscerate the unions, it would set off a wave of negotiations of settled contracts. It would go against decades of settled law that many businesses and unions have come to rely upon. It would remind us once again how much capital hates labor.
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