Friedrichs Amici Brief: AFL-CIO & AFSCME

In the run-up to oral argument in Friedrichs v. California Teachers Association, OnLabor will be reviewing some of the significant amicus briefs that have been filed in the case.

On Friday, several of the country’s largest unions filed amici briefs in support of the respondents in Friedrichs. The AFL-CIO and AFSCME mount a largely doctrinal defense of agency-fee arrangements in their joint brief:

In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), this Court correctly began its consideration of the First Amendment implications of public sector agency shop agreements with a careful review of its prior decisions in Railway Employees’ Dept. v. Hanson, 351 U.S. 225 (1956), and Machinists v. Street, 367 U.S. 740 (1961). Hanson and Street involved First Amendment challenges to the similar union shop agreements authorized by the Railway Labor Act. While the state action analysis that led the Court to perceive First Amendment implications in privately negotiated union shop agreements is now outmoded, the Court did proceed in those cases as though the First Amendment applied. Abood, therefore, correctly relied upon the First Amendment analysis in those cases.

Although “Hanson and Street explain the practical utility of the union shop in the majority-rule, exclusive-representative collective bargaining system erected by the Railway Labor Act,” the unions contend that Abood was correct in determining that (1) “the agency shop serves the same practical purposes in a similar public sector collective bargaining system,” and (2) “just so long as the agency shop is confined to requiring financial support for union activities within the collective bargaining system,” there is “no greater impairment of First Amendment rights than occurs under a government-authorized private agreement.”

This “constitutional balance,” the unions submit, also “accords with the balancing test for considering the employment-related First Amendment claims of public employees that was established in Pickering v. Board of Education, 391 U.S. 563 (1968). That balancing test requires weighing the government’s reasonable understanding of the employment interests served by the agency shop against the degree to which it impinges upon the First Amendment interests of covered employees.”

Similarly, the unions argue that an “opt-out” requirement is also in line with the Court’s previous decisions:

This Court has repeatedly held that employees are protected from paying full agency fees only if they express objection to so doing, a rule that derives from the line of cases concerning compelled speech. This rule was adopted in Street as an essential aspect of the Court’s reasoning in construing the Railway Labor Act. Street‘s strained construction of the RLA was designed to avoid a perceived constitutional problem that would arise if dissent were not protected by the statute. Accordingly, the rule is reasonably understood to reflect the constitutional requirements.

The protection of express dissent arises from the relationship of cases like Street and Abood to the more general line of compelled speech cases. Those cases hold that citizens have a First Amendment right to refrain from making government-prescribed statements. The compelled speech cases require only that the government allow the citizen to refrain from making the prescribed statement. Likewise, cases like Street and Abood require only that employees be allowed to refrain from financially supporting activities outside of the realm of collective bargaining and grievance adjustment by expressing their objection to financing such expenditures.

The AFL-CIO/AFSCME amici brief is available in its entirety here.