Government-employee unions were saved from severe enfeeblement by the death of Justice Antonin Scalia on February 13. On March 29, the Supreme Court split 4-4 to let stand the Ninth Circuit Court’s opinion upholding forced union fees collected by the California Teachers Association (CTA) from teachers who desire to be union-free.

When I wrote about this case (Friedrichs v. CTA) last December, I was hopeful that at least five Justices would overturn the Abood decision that permitted the collection of forced union dues in the government sector. The Court heard oral arguments on January 11 this year. I, along with almost all Court observers, inferred from the questions and comments of the Justices that Abood would indeed be overturned by at least a 5-4 majority, and that Justice Scalia would be in the majority.

But the March 9 opinion consisted of a single sentence: “The judgment [of the lower court] is affirmed by an equally divided court.” Like all per curiam decisions, it was unsigned, so we cannot be sure who voted how. But we can be sure that, had he lived, Justice Scalia’s vote would have been decisive.

Some apologists for union coercion seem to be dancing on Justice Scalia’s grave. For example, in The Daily Banter Ben Cohen wrote: “Now he is gone, the country finally has a chance to join other industrialized nations that encourage healthy unionism and collective bargaining for the good of all their people.” 

But collective bargaining in the government sector cannot possibly be for the good of all the people. It is not good for taxpayers who have to pay the bills and bear the unfunded pension liabilities that emerge from government-sector unionism. It is not good for children and parents who have to suffer the consequences of the decay of public education which emerges from teacher unions putting job security for bad teachers ahead of student learning. And it is not good for government workers who do not want to submit to the “representation” of unwanted unions, and who, nevertheless, are forced to pay for what they don’t want.

Union apologists justify the imposition of forced payment of fees on two grounds: achieving labor peace and avoiding free riders. As they see it, without coercing workers there would be constant battles between workers who want to be union-free and those who want to join unions. Without coercive unions most workers would battle each other and most employers most of the time.

Of course, this Hobbesian scenario doesn’t seem to exist in the 89% of the labor market that is union-free. Moreover, it is well documented that after the passage of the National Labor Relations Act (NLRA) in 1935, which imposed coercive unionism in the private sector, labor battles became more frequent and severe, not less.

The free rider problem in the government sector is actually the result of the various state clones of the NLRA that impose coercive unionism in state and local government employment. All such enactments impose "exclusive representation," whereby a union that has majority support among a set of employees becomes the monopoly bargaining agent for all of them – even those who do not support the union. Individual workers are even forbidden to speak or bargain for themselves. Without exclusive representation there could be no free riders. Unions would bargain for their voluntary members and no one else. Union apologists are never willing to avoid free riding by forgoing monopoly bargaining.

Abood permitted exclusive representation and, because of that mistake, permitted forced dues to overcome the free-rider effect of exclusive representation, in the government sector. Friedrichs did not involve a challenge to exclusive representation. (There is a case in the First Circuit that challenges exclusive representation in government employment that may make its way to the Supreme Court.) Nevertheless, it seems clear to me that monopoly bargaining in the government sector violates the associational and free speech rights of dissenting government employees.

What can we expect on these matters from the Supreme Court without Justice Scalia? Nothing good. President Obama’s pick to succeed Scalia, Judge Merrick Garland, has a disturbing pro-coercive-union record on the DC Circuit. And the sort of Justice that would be appointed by any of the likely nominees of either political party would probably not be any better.

Justice Scalia believed that the Court should be bound by the common meaning of the Constitution’s words at the time they were written. The contemporary mainstream view among judges and law professors is that the Constitution means whatever at least five Justices say it means, and they are free to make it up as they go along. I am afraid the Court will approve coercive unionism for the foreseeable future.

The only hope for freedom for government workers and taxpayers now lies with the individual states. State legislatures are free to outlaw exclusive representation and prohibit forced dues for their state and local employees. Freedom from coercive government unions must be won one state at a time.

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