On May 23, 1977, the U.S. Supreme Court issued a unanimous decision in Abood v. Detroit Board of Education. It was a terrible decision for worker freedom, and advocates for freedom have been trying to overturn it ever since.

The controversy prompting the case started, because Michigan law allowed unions to become the exclusive representatives of state employees. These workers had to pay union dues for this representation or agency fees, even if they were not union members. The fees purportedly only covered the cost of collective bargaining, not political spending, though the unions determined what the “collective bargaining” costs were.

After the Michigan Public Employment Relations Act was amended in 1965, the Detroit Board of Education held an election and the Detroit Federation of Teachers won an election and agreed to a collective-bargaining contract with the board on July 1, 1969.

Two months before the agreement was to become effective, though, on November 7, 1969, Christine Warczak, a Detroit schoolteacher for seven years, and other teachers sued the board, the union, and union officials in state court. The teachers didn’t want to pay agency fees and didn’t want collective bargaining in the public sector. The plaintiffs urged the state court to find the agency fees invalid under state and federal law, specifically the First and 14th amendments of the United States Constitution.

The state district court, unfortunately, dismissed the case. The plaintiffs appealed to the Michigan Court of Appeals, which upheld the agency fees even though it recognized that the rights of the teachers were being violated. The court felt that the plaintiffs should have told the unions what spending they objected to before suing in the state trial court in 1969.

The Michigan Supreme Court declined to review the case, but the U.S. Supreme Court took the case in 1976. In deciding the case, the Supreme Court first looked at precedent, Railway Employees’ Dept. v. Hanson (1956), and Machinists v. Street (1961).

In Hanson, railroad employees sued to eliminate agency fees. While the Nebraska Supreme Court decided that these fees violated the First and 14th amendments, the U.S. Supreme Court reversed the decision on grounds that the fees promoted labor peace. The court, however, decided that if the fees were not used for collective bargaining, that would be a different question.

The court in Street, however, found that using fees for political purposes violated the Constitution. This case was similar to Hanson, but there was actual evidence that the fees had been spent on political causes.

Because of Hanson, however, the U.S. Supreme Court ruled it could not stop the fees and returned the case to the lower court for a more limited solution. When the court took up the issue again in Abood in 1976, it quoted the concurring opinion of Justice Douglas in Street to explain its decision to uphold the agency fees:

The furtherance of the common cause leaves some leeway for the leadership of the group. As long as they act to promote the cause which justified bringing the group together, the individual cannot withdraw his financial support merely because he disagrees with the group’s strategy. If that were allowed, we would be reversing the Hanson case, sub silentio.

The Supreme Court next explained the plaintiffs’ arguments. Their first argument was that Hanson and Street should not influence the decision here because in this case, the workers were government employees. In addition, collective bargaining in the public sector is political. Unfortunately, the court rejected both arguments, saying public employees were not very different from private workers.

The justices then said the violation of the workers’ First Amendment rights was not all that great, because public employees could vote, volunteer for a campaign, and express their differences of opinion from the union.

The court held that while workers should not be forced to contribute to a political organization to keep their job, the union could charge fees to pay for collective-bargaining costs.

The opinion concluded by sending the case to the lower court and saying the court would determine if this was a good solution in a later case.

In the decades after Abood, the Supreme Court heard several important labor cases and came to conclusions that did not seem to fit with the Abood decision.

Then in 2013, one brave woman decided she was tired of paying agency fees to a union that spent money on political issues she disagreed with.

Rebecca Friedrichs was a public elementary school teacher in Orange County, California. She taught for more than 28 years. In a 2015 Washington Post profile, Friedrichs explained her teachers’ union, California Teachers Association (CTA), did not represent her. She believed the union protected abusive and incompetent teachers while denying opportunities for younger and better teachers.

She also said the union failed to respect her political views. She described in the article how she was shunned for supporting educational choice:

My union rep right there in front of everybody called me a radical right winger for daring to not stand against vouchers. I was trying to follow my conscience and I was abused for that. That whole school year I was shunned and treated like a second-class citizen.

After these experiences, she resigned from the union but still had to pay agency fees even though the union chooses to represent non-members.

In 2013, Friedrichs sued her union in Friedrichs v. California Teachers Association to eliminate agency fees, because she disagreed with what the union bargained over and felt they violated her First Amendment rights:

Here in California, most public officials have been put into office by union dollars. So you’ve put them into office and now you come to the bargaining table. The official you put into office is one side and the union is on the other side and you’re bargaining for taxpayer money, only the taxpayer doesn’t get invited to the table. That’s political, in my opinion.

On Dec. 5, 2013, however, the U.S. District Court for the Central District of California ruled against her. The court agreed with CTA that Abood allowed agency fees, and, therefore, the court couldn’t decide on the issue.

Friedrichs then appealed the decision on July 1, 2014, to the Ninth Circuit Court of Appeals. Fortunately, the Ninth Circuit upheld the lower court’s decision on Nov. 18, 2014, so that the case could be heard by the Supreme Court.

On March 29, 2016, the U.S. Supreme Court, however, affirmed the Ninth Circuit’s ruling, because Justice Antonin Scalia unexpectedly passed away in February 2016. Without Justice Scalia’s vote for freedom, the court was divided, and, therefore, the Ninth Circuit’s ruling against Friedrichs stood.

It was a blow to worker freedom advocates, especially since they thought they would win this case after hearing the oral arguments.

Unions, however, were thrilled with the decision. On March 29, 2016, the day of the decision, several unions had a press call. Mary Kay Henry, president of the Service Employees International Union (SEIU), said, during the call:

We know the wealthy extremists who pushed this case want to limit the ability for workers to have a voice, curb voting rights and restrict opportunities for women and immigrants, and we know the way to stop them is by taking our fight to the polls in November.

Union Banditry Disappears

Why were unions celebrating about Friedrichs? They had seen what happened to unions in Wisconsin after Act 10 was passed.

On June 29, 2011, Gov. Scott Walker (R) signed Act 10 or the Wisconsin Budget Repair Bill into law in the Badger State. The bill limited collective bargaining for most public sector employees to base wages, and employees were no longer required to pay dues. As a result, union membership dropped almost 40 percent. Within five years, Wisconsin taxpayers also saved $5.24 billion.

After seeing what happened in Wisconsin and learning about the Friedrichs case, the California Teachers Association actually held a conference to discuss the possible loss of revenue, membership, and staffing and the potential financial difficulties if the Supreme Court invalidated agency fees.

Freedom Is on the Horizon for Workers

Although the unions breathed a sigh of relief after Friedrichs was decided, they still have much to worry about because workers and their allies are still fighting for worker freedom.

On November 8, 2016, Donald Trump was elected president. President Trump has now appointed Justice Neil Gorsuch to the Supreme Court, and on April 10, 2017, Justice Gorsuch was sworn into Justice Scalia’s seat.

Justice Gorsuch has an impressive background, graduating from Columbia (B.A.), Harvard (J.D.), and the University of Oxford in England (PhD). He also clerked for Supreme Court justices Byron White and Anthony Kennedy and was a partner for Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington, D.C.

On May 10, 2006, President George W. Bush nominated him as a judge for the U.S. Court of Appeals for the Tenth Circuit in Colorado. He was unanimously confirmed by the Senate on July 20, 2006.

As a judge, Gorsuch has a similar judicial philosophy as Justice Scalia, using the text of the Constitution to decide a case. He is most well-known for his concurring opinion on the Hobby Lobby religious freedom case, which the Supreme Court upheld on June 30, 2014.

It still remains to be seen, however, how Justice Gorsuch will rule on labor law cases, but we may get that opportunity soon.

Possible New Supreme Court Cases

Worker freedom advocates have not given up the fight to overturn Abood and get rid of mandatory agency fees.

There are several cases in the lower courts that the Supreme Court could decide the question of agency fees, possibly as early as the fall, but the two most likely cases are Yohn v. CTA and Janus v. AFSCME.

Yohn v. CTA began on February 6, 2017, when Ryan Yohn and seven other experienced California teachers sued the California Teachers Association in the U.S. District Court for the Central District of California. They do not want to pay agency fees because they violate their First and 14th amendment rights.

Plaintiff Yohn explained his frustrations with the agency fee system in a Center for Individual Rights’ press release:

“My constitutional rights to free speech and association don’t stop at the school entrance,” said Ryan Yohn, one of the plaintiffs and a 13-year middle school teacher for the Westminster School District. “Each year, public school teachers in California must pay the union to promote policies that work against many of our own political, and sometimes moral, interests.”

The plaintiffs’ complaint says the agency fees violate the teachers’ First Amendment rights in two ways. First, agency fees require the teachers to contribute to collective bargaining expenses that violate the beliefs of the teachers and support other expenses. Secondly, the teachers have to opt out every year to avoid paying union dues.

Laws that potentially violate free speech have to be narrowly tailored to serve a compelling government interest. The plaintiffs argue that agency-shop laws aren’t narrowly tailored and they don’t serve a compelling government interest.

The complaint also points out that the agency fees mostly go to the state and national unions, not the local union that does the actual collective bargaining.

Further, the union does not bargain for certain benefits, like disability insurance (which covers maternity leave), but rather, it gives disability insurance to its members. So, non-members don’t receive valuable benefits and can’t bargain with the state for them. Similarly, a union can opt not to pursue a grievance that has occurred to a non-member, but the non-member can’t pursue the grievance on his or her own.

The second case, Janus v. AFSCME, was decided on March 21, 2017, by the U.S. Court of Appeals for the Seventh Circuit.

Like Michigan in Abood, Illinois has a similar law that requires non-union members who work for the government to pay agency fees. In 2015, however, Gov. Bruce Rauner (R) sued, arguing the fees violated the First Amendment rights of workers. The district court decided not to hear the case, because the governor was not paying the union fees. Two public employees, Mark Janus and Brian Trygg, however, added themselves to the case as plaintiffs, arguing they need the case to go to the Supreme Court so that Abood can be overturned.

Interestingly, Janus never challenged the fees before this case, but Trygg had. Trygg complained before the Illinois Labor Relations Board and then before the Illinois Appellate Court. He also argued that the law requiring the payment of fees ignored another law that said the fees could be paid to charity instead. In that case, Trygg won and was able to pay his fee to charity.

The unions, therefore, argue in Janus that Trygg has already gotten relief in the earlier case. The federal Seventh Circuit agreed, saying he could have argued his constitutional claims before the Illinois Appellate Court.

Surprisingly, the plaintiffs actually got what they wanted in this case: a chance to possibly be heard by the Supreme Court. The plaintiffs could only get this chance if they lost at this level and appealed to the Supreme Court.

In a Chicago Tribune article published on January 5, 2016, called “Why I don’t want to pay union dues” Janus explained why he was suing:

I don’t see my union working totally for the good of Illinois government. For years it supported candidates who put Illinois into its current budget and pension crisis. Government unions have pushed for government spending that made the state’s fiscal situation worse… The union voice is not my voice. The union’s fight is not my fight.

Interestingly, the most important constitutional claim for Abood, Friedrichs, Yohn and Janus is that the agency fees are violating the plaintiffs’ First Amendment rights of freedom of speech and association. Janus, however, includes paycheck protection, which would forbid the automatic deduction of fees from worker paychecks.

What would happen if Abood were overturned?

Public employees would gain more freedom, and unions would no longer be allowed to violate their First Amendment rights. They could join a union if they wanted or not join, just like any other group or association. In addition, private employees’ attempts to pass Right-to-Work would be bolstered, because private workers could argue more strongly that their rights were being violated as well by agency fees.

Perhaps in anticipation of a Trump Supreme Court deciding cases like the ones above, the SEIU announced in a December 14, 2016, memo that it would cut its budget by one-third by January 1, 2018. It would start by cutting ten percent of its $300 million budget at the beginning of 2017.

SEIU President Mary Kay Henry explained in a staff memo:

Because the far right will control all three branches of the federal government, we will face serious threats to the ability of working people to join together in unions. These threats require us to make tough decisions that allow us to resist these attacks and to fight forward despite dramatically reduced resources.

The group that would suffer the most if Abood were overturned would be Democratic politicians, who rely heavily on campaign contributions from unions. According to the Wall Street Journal, which analyzed Federal Election Committee campaign-finance filings, labor unions spent almost $110 million on the 2016 election between January 2015 and August 2016. Only a couple of unions supported Trump during the election, i.e. the Fraternal Order of the Police.

Unions also organized their members to knock on doors, make phone calls, and participate in rallies in 2016. For example, on October 15, 2016, hundreds of union members knocked on more than 5,000 doors in Philadelphia for Clinton. Union members also rallied in West Philadelphia, where the presidents of the American Federation of Teachers (AFT) and AFSCME spoke to them.

According to the Center for Union Facts, there are 14.3 million union members in America. The amount unions receive from those members is more than $8.5 billion annually, and union assets total more than $9 billion.

If Abood were overturned, it would be especially devastating to Democrats in battleground states, like Colorado, Michigan, and Minnesota. Because of Act 10, for example, Trump won Wisconsin by 1 percentage point, and Trump even won Michigan by 1.3 percentage points due in part to its labor reforms.

The United States was founded on the belief that all citizens have the unalienable rights of life, liberty, and the pursuit of happiness. Unions and politicians have eroded the liberty of workers for many decades. But maybe not for much longer.