Protesters opposing compulsory union agency fees rally outside the U.S. Supreme Court building. (AP photo)
(CNSNews.com) – “The idea that everything government unions do is political leads you to immediately look to the First Amendment to protect individuals who should not be compelled to fund speech that they disagree with,” Mark Mix, president of the National Right to Work Legal Defense Foundation, told CNSNews.com.
In a 4-4 split, the justices let stand a 9th Circuit Court of Appeals ruling that Rebecca Friedrichs and nine other educators in California who do not belong to the teachers union and who disagree with the union’s position on certain workplace rules must still pay an “agency fee” to represent them as a condition of employment.
The foundation filed an amicus brief in the case urging the high court to “make clear that nonmembers cannot be required to pay any dues, fees, or assessments to a union” that does not represent their interests or beliefs.
The brief quoted Thomas Jefferson: “’To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical’.”
“The Friedrichs case was a very, very important case as it relates to forced speech by individual workers, in this case teachers from California, who are forced to speak against their will by being forced to pay dues or fees to a labor union,” Mix explained.
“For the first time in 40 years, there was a real possibility that the Supreme Court was going to look very seriously at this compulsory unionism power over government employees across the country and overturn a kind of regulatory quick fix that they conjured up in 1977 in a case called Abood [v. Detroit Board of Education],” Mix explained.
“In Abood, the high court ruled that it was legal to charge non-union members an ‘agency fee’ to support collective bargaining.”
Mix surmised that the longstanding agency fee rule would likely have been overturned by the court were it not for the sudden death of Justice Antonin Scalia in February.
“Most people who listened to the [oral] argument in January and read the editorials and opeds… about the case believed that the court was ready to overturn this compulsory fee structure after 40 years of trying to get it right through continuing regulation,” Mix told CNSNews.com.
“Unfortunately, the untimely death of Justice Scalia allowed the court to send this back to the 9th Circuit on a 4-4 decision with really no comment one way or the other.”
“In what was likely a 5-4 Supreme Court decision coming down in Friedrichs, what that would have done is it would have protected every single government employee across the country who at this point is compelled to pay fees to get or keep their jobs,” Mix pointed out.
“It would have freed every government employee from the compulsion of forced fees, meaning there would have been national right to work protections for every government employee across the country.”
In her Nov. 6, 2015 brief in support of agency fees, California Attorney General Kamala Harris acknowledged that “unions do have substantial latitude to advance bargaining positions that benefit the unit as a whole, even if those positions run counter to the economic interests of some employees.”
But since a union must “fairly represent each and every employee in the appropriate unit” by law, so-called “free riders” must be required to pay their share of the union’s costs through agency fees, she argued.
Mix countered that “all government union officials do is convince government to allocate their resources in a certain way… in essence, everything they do is ‘political speech’.” Therefore, they are protected by the First Amendment.
“We won a case in 1988 called Communications Workers v. Beck thatestablished that while unions might be able to force you to pay something, they can’t force you to support political or ideological causes that are outside of ‘the bargaining process’. So that’s well established law.
“But this case got to the core of workplace issues,” Mix told CNSNews.com. “You had California school teachers who were disputing workplace decisions about tenure, merit pay, benefits, and bonuses for chemistry, math and science teachers.
“Ask a high school math teacher who’s been denied a $10,000 signing bonus to teach algebra because you can’t treat anybody differently under a collective bargaining agreement: ‘Is that a benefit?’ I don’t think so.”
Mix noted that despite the setback, his foundation is involved in five similar cases currently pending in courts throughout the country.
“The National Right to Work Foundation litigated two cases leading up to the Friedrichs case that basically set the foundation for the question about free speech rights for government employees. We have five cases pending in various places in the court system around the country, and all the cases in some way have pieces in part or in whole of the Friedrichs argument.
“So those cases will resume their path and it’s very likely one of those cases will end up at the U.S. Supreme Court when the court is at full strength,” he told CNSNews.com.
However, he noted that D.C. Court of Appeals Chief Judge Merrick Garland, President Obama’s nominee to replace Scalia, has a record of “expanding compulsory union power over workers.”
“He has sided, I think almost 100 percent of the time, with the bureaucracy, the National Labor Relations Board, and the union officials that use that particular agency to expand their power dramatically,” Mix said.
“We had two cases specifically in front of him where not only did he decide the wrong way, but he sided against what had been established precedent in several other circuits….
“Frankly, we believe that if Garland is to get a hearing, then one of the most important elements of that should be exposing his record as it relates to empowering union officials and expanding their compulsory union power over workers.”
Protesters opposing compulsory union agency fees rally outside the U.S. Supreme Court building. (AP photo) 
