Running head: COMMENTARY ON UNIONIZATION AND THE RIGHT TO WORK

Commentary
Unionization and the Right to Work
Robert Boyce
Georgia Southern University

COMMENTARY ON UNIONIZATION AND THE RIGHT TO WORK

Commentary on Unionization and the Right to Work

Introduction
Higher education is a field different from others. A number of the schools are under the
direction of the state government as public universities. Others are run by corporations and
charters under a private institute design. University faculty may feel the need to be represented
by a union to get their desires pushed to the front of the governing bodys agendas. While unions
can be helpful there are times when some faculty members feel as though their First Amendment
rights are being violated by union dues. It is in the public universities where the issue of union
dues has reach a point where a fair share due is placed upon faculty and staff that have no part in
the union itself. The payment of these dues is a highly contested debate within education and
other corporations in the country. Several different courts have ruled in favor of the union and the
collective bargaining dues that are obtained, yet still the current case of Rebecca Friedrichs et. al.
V. California Teachers Association, et al. may change the face of this issue once and for all.
Union Issues
Public employees have had the ability and right to unionize under the federal
government. There are multiple different unions across the country that supports the faculty in
numerous ways. Unions in general collect dues from their members, but the agency shop clause
in some union collective bargaining agreements states that the union can and will collect
payments from employees whom are not members of the union. The idea behind collecting from
all the employees regardless of their position on the union is that it will help to prevent those
who are not members of the union obtaining union based representation and benefits without
paying for them.

COMMENTARY ON UNIONIZATION AND THE RIGHT TO WORK

There are also issues where the faculty may feel as though their First Amendment rights
under the Constitution are being infringed upon. In the first case, Abood V. Detroit Board of
Education, 1977, the plaintiffs were suing because they found the collective bargaining
agreement to be in violation of their First Amendment rights. Their money was being sent to an
organization that they, themselves, did not want to be a part of and that was sending money to
other political, religious, or social groups that they did not want their money to fund.
in a number and variety of activities and programs which are economic, political,
professional, scientific and religious in nature of which Plaintiffs do not approve, and in
which they will have no voice, and which are not and will not be collective bargaining
activities, i.e., the negotiation and administration of contracts with Defendant Board, and
that a substantial part of the sums required to be paid under said Agency Shop Clause are
used and will continue to be used for the support of such activities and programs, and not
solely for the purpose of defraying the cost of Defendant Federation of its activities as
bargaining agent for teachers employed by Defendant Board. (Abood V. Detroit Board
of Education, 1977a).
These issues created the lawsuit against the Detroit Board of Education, but the courts
ruled in in favor of the board and the union. The reasoning behind this was that the plaintiffs of
the case did not make known any attempt to notify and remedy this issue with the union. Even
though they were not part of the union, if the union fees were being assessed then the staff
members have a right to inform the union that they do not want their money being spent in that
manner.
Although recognizing that such expenditures "could violate plaintiffs' First and
Fourteenth Amendment rights," the court read this Court's more recent decisions to

COMMENTARY ON UNIONIZATION AND THE RIGHT TO WORK

require that an employee who seeks to vindicate such rights must "make known to the
union those causes and candidates to which he objects." Since the complaints had failed
to allege that any such notification had been given, the court held that the plaintiffs were
not entitled to restitution of any portion of the service charges (Abood v. Detroit Board
of Education, 1977b).
The After Effects of the Abood case
The ruling from the Abood case has been echoed throughout history since then. States
where unions are allowed and collective bargaining agreements have been made can allow an
agency shop fee to exist. As long as the funds are being used for union and employee activities
that are not election, religious, or other sorts of affiliated reasons dues can be collected without
infringing on First and Fourteenth Amendment rights. The rules for this were set in Chicago
Teachers Union v. Hudson. The three step process is followed after an objection to the unions
usage of the dues is filed. The third rule in this series was created due to a unions failure to
prevent electoral spending of due money received from nonunion members.
(1) the Union's Executive Committee would consider the objection and notify the
objector within 30 days of its decision; (2) if the objector disagreed with that decision and
appealed within another 30 days, the Union's Executive Board would consider the
objection; and (3) if the objector continued to protest after the Executive Board's
decision, the Union's President would select an arbitrator. (Chicago Teachers Union v.
Hudson, 1986).
States and Union Laws

COMMENTARY ON UNIONIZATION AND THE RIGHT TO WORK

Unions in some states have been required to send out an affirmation affidavit to the
nonunion members when their dues are being used for political or social opportunities. The
affidavit must be returned to the union stating if they elect to have the funds used for it or not. In
the Davenport et al. v. Washington Education Association case this ideal came to ahead once
again in a challenge against a persons First and Fourteenth Amendment protections. The
plaintiffs in this case claimed that the union was once more using their dues for electoral
contributions. The problem that the plaintiffs affirmed was that the union was infringing on their
rights when donating to specific political causes that were not in line with their own beliefs. The
law that the union was following happened to be the one set up by the state of Washington, it
allowed the union to use the funds given to them if no disagreement was filed, for political
funding.
Once the issue reached the U.S. Supreme Court Justice Scalia gave a different opinion
than that of the Supreme Court of Washington State.
The court reasoned that this Courts agency-fee jurisprudence established a balance
between the First Amendment rights of unions and of nonmembers, and that 760
triggered heightened First Amendment scrutiny because it deviated from that balance by
imposing on respondent the burden of confirming that a nonmember does not object to
the expenditure of his agency fees for electoral purposes (Davenport et al. v. Washington
Education Association, 2007).
The Supreme Courts rationale was that the state had taken a new position one that was
not just to regulate the laws, but to allow a lack of response to be considered as a yes.
The Current Case

COMMENTARY ON UNIONIZATION AND THE RIGHT TO WORK

In the current case Friedrichs et al. v. California Teachers Association, the United States
Supreme Court will tackle the legality of unions taking dues from nonunion members. The
teachers on the side of Friedrichs believe that the union taking dues from those that are not
members still infringes on their fundamental rights, not only the First Amendment but also the
Fourteenth Amendment. The teacher association refers back to the Abood case where the courts
ruled that collecting dues from nonmembers helps to prevent free rider status for those
employees (Friedrichs et al. v. California Teachers Association, 2015). This case is pivotal for
unions and for faculty as well. It could declare a right to work setting for all states or leave them
as they are now where some have collective bargaining agreements with agency shop clauses.
Due to the recent passing of Justice Antonin Scalia, the Supreme Court has recently just
ruled on this case. As of March 29th, 2016, the judgment was affirmed by an equally divided
court, (Supreme Court of the United States, 2016).
Response to the Current Issue
This issue will not be settled completely until another Supreme Court Justice is appointed
to the court. The rights of those who are nonunion members are, in a way, being violated by them
being forced to pay for a union that is not completely representing them or their interests. The
unions in one view can be seen as somewhat acting under color of state law, in that they are
given power by the states to collect dues from nonmembers and members alike. To curb this
issue, it would seem far too simple to make sure that union protections and advantages are given
only to those who are a part of the union. Faculty and staff of public universities are protected by
the United States Constitution. As such they should be afforded the chance to work without
having to give into the requirements of a union that they oppose, or one that supports opposing
political or social views.

COMMENTARY ON UNIONIZATION AND THE RIGHT TO WORK

At the same time unions are not specifically relegated to actors under the state. Some
view the unions as voluntary organizations that have entitlements. Unions give employees
protections that even if you are not part of the union you may enjoy, therefore they should be
able to collect a basic fee for the services that all employees in a sense will obtain.
The main goal of faculty and staff is to instruct and prepare the students for their future, it
should not be to promote political committees that are in disagreement with the faculty member.
There are rules for preventing and denying the union usage of the fees for political aspects. This
helps prevent that form of abuse in union spending. Promoting a right to work environment or
simply requiring all employees to be a part of a union are the two opposite end responses to the
issue. Unions believe that their funding requires the dues from nonmembers to prevent any form
of free boarding. If there is a right to work environment and a list to keep those who are not
union members from getting any benefits from those who are unionized, then unions should still
be able to pay for some of their conferences and political missions. Alternatively having all
employees join the union would infringe on their rights unless the union is barred from entering
into any political or social activities.
Unions in general are very different organizations. They are not directly under the color
of state law, but they are also not completely voluntary organizations with entitlement abilities
either.
Voluntary advocacy organizations have constitutional entitlements that unions might
envy, but they lack the statutory powers that unions enjoy. And states have powers that
unions might wish to claim by analogy (like the power to make majoritarian decisions
binding on all, and to tax constituents), but they are also subject to the manifold
constitutional restrictions on state action, (Estlund, 2015 p. 22).

COMMENTARY ON UNIONIZATION AND THE RIGHT TO WORK

Finding a common ground for all parties involved will not be a simple or easy fix, for the
rights of the individual, the organization, and ensuring that the laws are followed requires more
though than striking down agency shop fees or forcing everyone into the union regardless of
their desires. The difficulty of this issue comes from not wanting to infringe upon the rights of
either side of the equation. University faculty and staff will have to devise a plan, based on their
state, where they can both collect the fee from everyone and offer protection while ensuring that
those fees are not used for political gain. Or separate those who want the union based protections
and political aspects from those that want no part of them.

COMMENTARY ON UNIONIZATION AND THE RIGHT TO WORK

References
Abood V. Detroit Board of Education, 431 U.S. 209 (1977a). Retrieved from:
http://www.leagle.com/decision/197515260MichApp92_1139.xml/ABOOD%20v.
%20DETROIT%20BD.%20OF%20EDUC.#
Abood V. Detroit Board of Education, 431 U.S. 209 (1977b). Retrieved from:
https://www.law.cornell.edu/supremecourt/text/431/209
Chicago Teachers Union v. Hudson, 743 F .2d 1187. (1986). Retrieved from:
https://supreme.justia.com/cases/federal/us/475/292/case.html
Davenport V. Washington, 551 U.S. (2007). Retrieved from:
http://www.supremecourt.gov/opinions/06pdf/05-1589.pdf
Estlund, C. (2015). Are Unions a Constitutional Anomaly? New York University Public Law and
Legal Theory Working Papers. Retrieved from: http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2548748
114, 2015, Forthcoming; NYU School of Law, Public Law Research Paper No. 15-01.
Available at SSRN:

Friedrichs et al. v. California Teachers Association, 14-915 (2015) Retrieved from:

http://www.scotusblog.com/wp-content/uploads/2015/09/friedrichs-opening-brief.pdf
Supreme Court of the United States, 578 U.S. (2016). Retrieved from:
http://www.supremecourt.gov/opinions/15pdf/14-915_1bn2.pdf