Catherine Fisk is Chancellor’s Professor of Law at the University of California, Irvine.

While the primary importance of the Supreme Court’s decision in Friedrichs v. California Teachers Association will be for the future of public sector unions, the conceptual issue that makes the case interesting is how the Court will balance majority rule and individual rights.  The extensive coverage of Friedrichs here has identified the many inconsistencies in the Court’s previous cases addressing asserted free speech rights of government employees.  But one case that hasn’t been discussed is 14 Penn Plaza v. Pyett, 556 U.S. 247 (2009).  Justice Thomas’ opinion for five justices (all of whom are still on the Court and who might be expected to form a majority to overrule Abood) insisted that unions can waive statutory (and possibly First Amendment) rights of individuals to petition courts.

At issue in Penn Plaza was whether a collective bargaining agreement can waive the right of individual employees to file statutory discrimination suits in court.  The collective agreement prohibited discrimination on the basis of any “characteristic protected by law, including, but not limited to, claims made pursuant to” a number of specific local, state, and federal laws.  An employee whose grievance had been denied sought to sue for age discrimination in federal court.  The Supreme Court held that the collective bargaining agreement waived the individual employee’s right to bring his statutory claims in court.

Justice Thomas went to some lengths to explain why the Court’s decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), which held that a collectively bargained antidiscrimination provision did not preclude an employee from suing to challenge race discrimination in federal court, did not govern.  In Gardner-Denver, the Court had explained that “the union’s exclusive control over the manner and extent to which an individual grievance is presented” made it inappropriate for the union to waive the employee’s right to bring individual claims in court because the union might subordinate the interests of the individual or the minority to the interests of the majority.

Here is what Justice Thomas said in Penn Plaza about why the conflict of interest between the union (representing the majority) and the individual does not prevent the union from waiving the individual’s right to file suit:

Labor unions certainly balance the economic interests of some employees against the needs of the larger work force as they negotiate collective bargaining agreements and implement them on a daily basis. […] This principle of majority rule to which respondents object is in fact the central premise of the NLRA.  In establishing a regime of majority rule, Congress sought to secure to all members of the unit the benefits of their collective strength and bargaining power, in full awareness that the superior strength of some individuals or groups might be subordinated to the interest of the majority.  It was Congress’ verdict that the benefits of organized labor outweigh the sacrifice of individual liberty that this system necessarily demands.  Respondents’ argument that they were deprived of the right to pursue their ADEA claims in federal court by a labor union with a conflict of interest is therefore unsustainable; it amounts to a collateral attack on the NLRA.

The whole thrust of the National Right to Work Committee’s arguments in support of Rebecca Friedrichs are that unions and employers cannot agree to waive rights employees would otherwise have to refrain from supporting the union.  Yet that is exactly what Penn Plaza allows:  to get the benefit of collective strength, the union can waive the right of individuals to assert claims in court.  Of course, Penn Plaza reached this result as a matter of statutory interpretation while Friedrichs asserts the same position as a constitutional right, and Penn Plaza arises in the private sector while Friedrichs is a public sector case.  But the conceptual point is the same:  in a system of governance based on majority rule, the majority can enact rules that limit some rights of the minority.

Friedrichs is more than what Justice Thomas called a “collateral attack on the NLRA.”  It is a direct attack on the dues and fees mechanism that is essential to exclusive representation and majority rule.  If the Court is going to hold that the constitution prohibits a system of majority rule for funding collective bargaining and grievance arbitration, it must explain why neither the Constitution nor the antidiscrimination laws protect individual rights to determine which claims are submitted to arbitration.