The First Amendment and Public Employees: Supreme Court Reconsiders Limitations

Image of 3D people carrying a stack of money with a percent sign over it

A 1977 Supreme Court decision (Abood vs. Detroit Board of Education) generally allowed public unions to collect money from public employees who were not union members to cover the cost to the union of negotiating labor agreements for the employees.  The stipulation was that the money could not be used for political causes.

A new case now before the US Supreme Court will take another look at this issue. (Friedrichs vs. California Teachers Association)

Not surprisingly, some employees don’t like having to pay money to the union when they have decided not to join the organization. No doubt, a ruling allowing a non-member to opt out of paying money to the union would have a negative impact on the amount of money available to the union.  About half of the states now have right-to-work laws that ban mandatory union fees, although overturning its 1977 ruling would affect states with large public unions in 23 states including California, New York and Illinois.

Some of the teachers that have brought the case argue that unions have become more political organizations since the original court decision and that routine bargaining issues like higher salaries, pension benefits and seniority policies have become political issues. In effect, they argue that they are being forced to pay for the union to advocate their positions with which they do not agree with but are still required to fund by virtue of working for a government organization.

The case boils down to whether requiring public sector employees to pay dues to a union that may have often taken positions contrary to the personal preferences of individual employees interferes with their first amendment rights to freedom of speech. In 1977, Justice Potter Stewart wrote in the Court’s majority opinion, that “to compel employees financially to support their collective bargaining representative has an impact upon their First Amendment interests (but) such interference as exists is constitutionally justified to prevent freeloading and to ensure ‘labor peace’.”

The issue is obviously a major issue of concern to public unions and, predictably, publications such as the Washington Post decry the effort to overturn the 1977 decision of the court while pundits such as George Will favor overturning the current policy.

Federal employees who are wondering how this case will impact them need not worry.

The decision, regardless of which way the Court rules, will not have a direct, immediate impact on federal workers.  The federal labor relations statute essentially makes the federal government a right-to-work employer. Federal employees can join a union and participate in union activities if they wish to do so. But, like in right-to-work states, a federal worker is not required to join a union or to pay a fee to the union for its services which may create benefits for all employees in a bargaining unit—including those employees who are not paying dues.

The federal labor relations statute does give federal employee unions financial benefits such as “official time” for union representatives who continue to receive their salary when working on behalf of a union. Agencies sometimes (usually) also provide benefits to the union such as office space and equipment.

There is no doubt that unions have become a political force in government at all levels and that they generally support Democrats. But, while some federal employees may not like the fact that unions generally support Democrats over Republicans with their time, money, and expertise, federal employees can opt out of paying anything to the union for its services.

Of course, Republicans are well aware of the political preferences of the unions, and while pay and benefits used to generally considered as a politically neutral issue, Republicans often counter union efforts to seek their defeat on election day by working to restrict union benefits and, perhaps in a less visible approach, by withholding their enthusiasm for higher pay and benefits for the federal workforce.

So, any impact of the upcoming Supreme Court decision on the federal workforce will be indirect but could provide more incentive for those who seek to restrict federal union benefits and those seeking higher pay or benefits for federal employees.

© 2016 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.


About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources.