Friedrichs Amicus Brief: National Right to Work Legal Defense Foundation

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.

In September, the National Right to Work Legal Defense Foundation submitted an amicus brief in support of the Friedrichs petitioners’ position that Abood v. Detroit Board of Education should be overturned.

The organization first points to Justice Alito’s criticism of Abood in Harris v. Quinn to argue not only that “collective bargaining with government is a political activity,” but also that “Abood is unworkable in practice.” It then proceeds to focus on a “single, dispositive point: the power of exclusive representation is a great benefit to unions that assists them with recruiting and retaining dues-paying members.”

“This point is dispositive,” the foundation claims, because “Abood‘s ‘free rider’ rationale is predicated on the opposite presumption: that exclusivity is a burden imposed on unions that impedes their ability to recruit members. This supposition turns reality on its head. Far from being an imposed burden, exclusive representation is a power that unions voluntarily seek for their own aggrandizement. And far from impairing recruitment, that mantle cloaks unions with government-conferred advantages in retaining members of which voluntary advocacy groups could only dream.”

The brief continues:

Abood‘s free rider rationale cannot satisfy the constitutional scrutiny now required by this Court’s precedents, which requires showing that compulsory fees “serve a ‘compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of associational freedoms.'” Harris, 134 S. Ct. at 2639 (quoting Knox [v. SEIU], 132 S. Ct. at 2289). First, compulsory fees are unnecessary for exclusive representation because unions will week, and jealously guard, this crown irrespective of whether they can tax every employee subject to their reign. Second, far from being a least restrictive means, compulsory fees exacerbate the associational injury the government inflicts by forcing employees to accept an exclusive agent for lobbying the government.”

In asking the Court to overrule Abood, the organization also asks the Justices “to prevent union resistance to this holding” by “ma[king] clear that unions cannot seize any fees from employees, for any purpose, without the employees’ express consent” — a reference to the second question presented in Friedrichs regarding the constitutionality of “opt-out” union membership requirements.

The full brief is available here on the ABA website.