Cases in the Pipeline — Challenges to Union Security Clauses

As members of the Supreme Court draft their opinions in Harris v. Quinn — the case we have been closely watching because it may determine the future of union security clauses for public-sector workers — a number of other potentially significant cases challenging security clauses in public and private contexts are brewing in the lower courts.

As we have discussed in our coverage of Harris, the plaintiffs there are challenging an Illinois statute that provides for a union to exclusively represent certain personal care providers in their dealings with their state employer — assuming a majority of the providers vote to accept such an arrangement. If a union is formed, then even the personal care providers who did not wish to join would still be required to pay the equivalent of dues. The purpose of the statute is to prevent the collective-action problem that would result if workers could “free ride” and benefit from the union’s bargaining efforts without paying dues — a situation that could compromise the union’s membership.

In 1977, the Supreme Court in Abood v. Detroit Board of Education upheld a similar arrangement, holding that the government’s interest in “labor peace” outweighed any First Amendment problems posed by requiring public-sector workers to pay for a union’s collective bargaining efforts. Abood did, however, prevent the government from requiring workers to pay for union activity not “germane” to collective bargaining (such as political lobbying), holding that the First Amendment requires unions to provide workers with a means of opting out from any such dues. In addition, the Court has recently indicated a willingness to reexamine Abood completely, suggesting in 2012’s Knox v. SEIU that Abood may not have given “adequate recognition to the critical First Amendment rights at stake.”

Taking up Knox’s charge, four cases — many filed by the National Right to Work Committee, which is behind Harris — are also challenging Abood’s two holdings that (1) union security clauses are constitutional and (2) unions under security clauses can require workers to “opt out” from paying for nongermane activity.

Public-Sector Challenge to Union Security Statute — Parrish v. Dayton (8th Cir.)

Last June, a group of Minnesota family childcare providers in Parrish v. Dayton filed an almost identical complaint as the plaintiffs in Harris, challenging a Minnesota statute that provides for an “exclusive representative” to represent all childcare providers in their relations with the state. As in Harris, the plaintiffs in alleged that the Supreme Court’s 1977 decision in Abood does not govern their situation because the government has no interest in “labor peace” with childcare providers who do not work in the same location and who can still petition the government for anything other than terms of employment. The Parrish plaintiffs therefore argue that, under Abood, the government has an insufficiently compelling reason to restrict the employees’ First Amendment right to disassociate from organizations.

Echoing Harris, a federal district court held in August that the Parrish plaintiffs’ claims are not yet “ripe” because there is no guarantee that family childcare providers will actually vote for a union to exclusively represent them; the statute, therefore, may never take effect. The case is currently sitting in the Eighth Circuit Court of Appeals, which is waiting for the Supreme Court to decide Harris. Any decision in the Supreme Court — including a decision that the plaintiffs’ claims are not yet ripe — will likely govern the Parrish plaintiffs as well.

Public-Sector Challenge to Union Security Statute — Friedrichs v. California Teachers Association (9th Cir.)

The Parrish court is not the only one explicitly waiting for the Supreme Court to decide Harris. In Friedrichs v. California Teachers Association, a case that we have repeatedly discussed on this blog, several California teachers are challenging the state’s “agency shop” law, which authorizes union security clauses and requires nonunionized teachers to pay dues. The case is directly controlled by Abood, as the federal district court made clear in its decision in December. Nevertheless, the plaintiffs have sought expedition to the Supreme Court because they believe Abood should no longer be good law in light of Knox. The case is presently before the Ninth Circuit Court of Appeals, which has scheduled briefing deadlines (and an expedition request) to fall after the Supreme Court decides Harris, presumably in case the Court takes a further step toward overruling Abood.

Public-Sector Challenge to Union Security Agreement’s Opt-Out Provision — Hamidi v. SEIU Local 1000 (E.D. Cal.)

In January, another group of California public-sector employees filed a similar suit, Hamidi v. SEIU Local 1000. Rather than challenge the entire premise of California’s “agency shop” law as the Friedrichs plaintiffs have done, the Hamidi plaintiffs have focused their complaint on the provision of California law that requires nonunionized public-sector workers to annually “opt out” if they do not wish to pay the subset of mandatory fees that unions would otherwise use to engage in activities outside of collective bargaining, such as political advocacy. The complaint alleges that this “choice architecture” sets a default position that makes it “difficult for employees who have already rejected union membership to also retain their political associational and autonomy.” The plaintiffs also challenge several of SEIU Local 1000’s specific practices, such as its requirement that objecting employees opt out via certified mail and its alleged failure to provide adequate notice or explanation of the amount of the fee. The SEIU has yet to respond to the complaint in court, but has issued a press release attributing the suit to the National Right to Work Foundation, which it calls “extremists whose chief interest is undermining the combined strength of working families.”

Private-Sector Challenge to Union Security Agreement’s Opt-Out Provision — Serna v. Transport Workers Union of America, AFL-CIO (N.D. Tex.)

Finally, while Harris and the above three cases are limited to the public-sector context, a group of Texas plaintiffs is challenging the legitimacy of “opt out” clauses in private sector contracts. If the challenge is accepted, the case could have tremendous implications, not only for private sector unions, but for all of First Amendment law as well.

In Serna v. TWU, a group of five employees of American Eagle Airlines and one employee of Southwest Airlines have filed a class action challenging the union security agreement their airlines have signed with the Transport Workers Union of America. In their complaint, the plaintiffs explicitly draw on Knox v. SEIU, which they argue “signaled that [the Supreme Court] was ready to reassess whether compulsory union fees ‘cross[] the limit of what the First Amendment can tolerate.’” The employees have therefore “invoke[d] the Supreme Court’s invitation to re-litigate the constitutionality of statutes and union practices that require compulsory union fees as a condition of employment.” As in Hamidi, the Serna plaintiffs allege that only an “opt in” (as opposed to “opt out”) provision can satisfy the First Amendment. And even if an opt-out provision is constitutional in principle, the workers also argue that the Constitution does not permit the TWU’s requirements that employees (1) renew their objections annually and (2) provide the union with involuntary loans until their fees are reimbursed.

The interesting quirk about Serna is that the Constitution, including the First Amendment, normally only prohibits certain conduct of state actors, not private actors. But American Eagle and Southwest Airlines are private employers — in contrast with the public employers in Harris, Parrish, Friedrichs, and Hamidi. To overcome this doctrinal challenge, the Serna plaintiffs argue that the First Amendment still applies because the airlines are acting “under color of federal law,” as the Railway Labor Act (RLA), which governs private contracts in the railroad and airline industries, permits union security agreements. If not for the RLA, the plaintiffs argue, Texas’s “right to work” law would govern and make all union security agreements (such as the one signed by the airlines) illegal.

Serna thus raises an important question of “state action doctrine” — how involved the government must be in a seemingly private arrangement before the Constitution is implicated. The doctrine has plagued labor law, often with inconsistent results. In Marsh v. Alabama (1946), for example, the Supreme Court held that the First Amendment prevented a privately owned “company town” from prohibiting a Jehovah’s Witness from entering, as the state’s enforcement of a trespass statute in that context was sufficient to involve the Constitution. But in Hudgens v. NLRB (1976), the Court held that the First Amendment did not require a private shopping mall to permit picketing workers to enter because the mall had not assumed “all of the attributes of a state-created municipality” — even though the same type of trespass statute was implicated.

In the specific context of the Railway Labor Act, the Court has ducked the state action question by interpreting the RLA as though it imposed the same requirements on private employers as the First and Fourteenth Amendments does for public employers — but without explicitly saying so. In Steele v. Louisville & Nashville Railroad Co. (1944), for example, the Court held that the RLA required a (private) railroad union to represent all employees without discriminating by race, even though the Court did not cite the Fourteenth Amendment or any explicit equal protection provision of the RLA. And in International Association of Machinists v. Street (1961), the Court upheld a (private) union security agreement for railroad workers but interpreted the RLA to prohibit mandatory dues for the union’s political advocacy. The case thus reached the same conclusion as 1977’s Abood but without first citing the First Amendment.

If a court finds that the First Amendment applies to the Serna plaintiffs because federal law permits a union security contract, the case could have wide implications for all of labor and constitutional law, introducing First Amendment concerns into many types of private arrangements (including, at the very least, railroad and airline contracts). The case is presently in discovery, however, so no court has yet ruled on the merits.