A Conservative Rewriting Of The 'Right To Work'

A Conservative Rewriting Of The 'Right To Work' The problem with talking about a right to work in the United States is that the term refers to two very different political and legal concepts. The first is the broader concept of having a positive right to gainful employment a right embraced by the political left, endorsed in 1944 by President Franklin Roosevelt in his Second Bill of Rights and embodied in the United Nations 1948 Universal Declaration of Human Rights. The second is the much narrower concept of having a right to work without being required (by an employer) to join an employees union a right embraced by the political right and embodied in the 1947 Taft-Hartley Act, as well as in various state laws. The U.S. Supreme Court s recent decision in Harris v. Quinn is about this second, narrower right to work. (The plaintiffs in Harris were represented by the right-leaning, anti-union National Right to Work Legal Defense Foundation.) More precisely, Harris represents a new effort by the Supreme Court s rightleaning justices to use the First Amendment as a vehicle for expanding the anti-union concept of right to work. But Harris stands in stark contrast to how the high court s conservative justices have historically treated the First Amendment in this context. The First Amendment and the Broader Right to Work After a policeman in New Bedford, Massachusetts, was fired for political activity in 1891, Supreme Court Justice Oliver Wendell Holmes, sitting on the Massachusetts Supreme Court that upheld the local law that allowed the policeman to be fired, wrote: There may be a constitutional right to talk politics, but there is no constitutional right to be a policeman. McAuliffe v. New Bedford, 155 Mass. 216, 29 N.E. 517 (1892). The McAuliffe case had nothing to do with unions, which is to say that Holmes was referring to the broader concept of having (or not having) a positive right to employment not to the narrower concept of having (or not having) a right to work without being a union member. Holmes point, in McAuliffe, was that people did not have a right to keep any particular job. They had a right to free speech, but that First Amendment right was not so robust as to protect them against getting fired for what they said. Justice Holmes maxim represented the law of the land for several decades. In 1952, for example, the Supreme Court upheld a collection of state laws designed to exclude communists from working in New York public schools. Adler v. Board of Ed. of City of New York, 342 U.S. 485 (1952). As Holmes had done in McAuliffe, the court recognized in Adler that the plaintiffs had First Amendment rights but that they had no right to work for the State in the school system. The First Amendment could protect their liberty to retain their beliefs and associations, but they might have to go elsewhere for employment. Id. at 384 385. In other words, the First Amendment did not protect a broad right to work in the job of one s choosing. Adler was decided 6-3 by conservatives on the Vinson Court just before Earl Warren was confirmed the new chief justice in 1953. The three dissenters in Adler were Justices Hugo Black, Felix Frankfurter and William Douglas three FDR appointees who would soon become known as liberal lions on the Warren Court. The Warren Court eventually invoked the First Amendment to reject the McAuliffe/Adler view of employees rights. In 1968, Justice Thurgood Marshall, writing for an almost-unanimous Supreme Court,

held that public employees could not be fired for speaking out on matters of public importance. Pickering v. Board of Ed., 391 U.S. 563 (1968). After Pickering, Justice Holmes McAuliffe maxim was reduced to a footnote, often invoked only to be rejected, as courts (following Pickering) generally found that the First Amendment protected the right of public employees to work without being punished for their speech or associations. See, e.g., Tygrett v. Washington, 543 F.2d 840, 845 846 & n.39 (D.C. Cir. 1974) ( we no longer regard as viable Justice Holmes statement in McAuliffe ). Notably, however, Pickering was only almost-unanimous. Justice Byron White filed a separate opinion, in which he concurred with the core of the court s decision but disagreed with what he saw as an overly expansive view of the First Amendment s protections. As White saw it, there were certain kinds of speech that could still get a school teacher fired, without violation of the First Amendment. Id. at 584 (White, J., concurring in part and dissenting in part). But it wasn t until White was part of a reconfigured Burger Court that he was able to successfully rein in what he saw as the excesses of Pickering. In 1983, White was joined by Nixon appointees William Burger, Lewis Powell and William Rehnquist and by the new Reagan appointee, Sandra Day O Connor in holding that public employees can be fired for what they say, if what they say is only a matter of personal interest and not a matter of public concern. Connick v. Myers, 461 U.S. 138, 147 (1983). According to this new conservative coalition, the First Amendment did not protect a broad right to work. Public employees were still subject to personnel decision[s] that are made in reaction to the employee s behavior. Id. Connick was decided 5-4. Justice William Brennan, who had been part of the Pickering decision, dissented, joined by Justices Marshall (the author of Pickering), John Paul Stevens and Henry Blackmun. In other words, the liberal side of the Supreme Court still felt that the First Amendment ought to protect a broad right to work without fear of retribution for one s speech. See id. at 156 (Brennan, J., dissenting). Just a few years later, the new Rehnquist Court heard a case in which a public employee had made a private comment about President Ronald Reagan to her husband, who was also a fellow employee, and had been fired for it. The Supreme Court's conservatives Rehnquist, White, O Connor and the newly appointed Antonin Scalia again wanted to uphold the firing, under Connick. See Rankin v. McPherson, 483 U.S. 378, 394 (1987) (Scalia, J., dissenting). But this time the liberal dissenters in Connick were joined by Justice Powell to form a majority, holding that, even after Connick, the First Amendment was still strong enough to protect a public employee s right to work and not be fired for something she said. Still later, the conservatives came back in the Roberts Court to once again limit the First Amendment s protection of a broader right to work without fear of retribution, holding that a public employee can be subjected to adverse employment actions for something he says this time if it was said pursuant to his official duties. Garcetti v. Ceballos, 547 U.S. 410 (2006). According to Justice Anthony Kennedy joined by Chief Justice John Roberts and Justices Scalia, Clarence Thomas as well as the newly appointed Samuel Alito Government employers, like private employers, need a significant degree of control over their employees words and actions; without it, there would be little chance for the efficient provision of public services. Id. at 418 (emphasis added). And again, the liberals Justices Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer all dissented, believing the First Amendment s protections ought to extend to protecting the employee against adverse action.

The Pickering-Connick-Rankin-Garcetti line of cases is still the law, when it comes to the broader right to work and First Amendment protections of that right. And from this line of cases, it s clear that where the broader right to work is concerned, it has long been the liberals who have embraced the First Amendment as a vehicle for protecting that right. The First Amendment and the Narrower Right to Work Meanwhile, as the Pickering-to-Garcetti line of cases developed regarding the broader right to work without fear of retribution for speech or associations, another line of cases was developing regarding the narrower, anti-union right to work. This narrower concept of the right to work developed as a response to closed shop agreements. That is, before 1947, an employer could lawfully agree to operate as a closed shop meaning, to facilitate the efficiency of negotiating with a single entity in collective bargaining, employers could lawfully agree to require that all employees be card carrying members of the employees union, thus making union membership a condition of employment. But the anti-union movement objected to these agreements, and began to advocate for a right to work without being required to join a union. In 1947, the Taft-Hartley Act promoted by big business and passed over President Harry Truman s veto made closed shops illegal. In the wake of Taft-Hartley, union membership could no longer be required as a condition of employment. But, under Taft-Hartley and other statutes, and as part of the employer-employee collective bargaining agreement, employers could still have union shops requiring nonunion employees to pay an "agency fee" to support the union s bargaining efforts. Plaintiffs challenged this agency fee under the First Amendment, claiming that it required nonunion members to support political speech and activity (by the union) that the nonunion member might disagree with. And in 1961, the Supreme Court indicated that agency fees would violate the First Amendment, to the extent they would require nonunion employees to support political speech they disagreed with. International Ass n of Machinists v. Street, 367 U.S. 740 (1961). The appropriate remedy for those who disagreed with the union s political activity, however, was not to do away altogether with requiring nonunion members to pay fees. Instead, employers and unions could work together to ensure that nonunion members who did not wish to support the union s political activities were refunded any portion of their fees that was not used strictly for collective bargaining purposes. Id. at 771 775. This became known as the fair share fee. The rationale for the fair share fee is that the union is required to negotiate on behalf of all employees, and any collective bargaining agreement that is reached applies to all employees. So, if the union obtains a wage increase or better working conditions, all employees benefit from the union s efforts. Because nonunion members benefit from the union s efforts every bit as much as union members do, nonunion employees could still be required to pay their fair share to support the union s bargaining efforts. Cf. Knox v. Service Employees, 567 U.S.,slip op. at 10 (2012) ( The primary purpose of permitting unions to collect fees from nonmembers is to prevent nonmembers from free riding on the union s efforts, sharing the employment benefits obtained by the union s collective bargaining without sharing the costs incurred. ). But according to some advocates of the narrower, anti-union right to work, even the fair share fee was too much to ask. And in 1977, Detroit teachers brought their case to the Supreme Court, contending that

their First Amendment rights protected them against having to pay the fair share fee. But the court disagreed. In an opinion by Justice Potter Stewart, the court noted that the fair share fee supported only the union s collective bargaining efforts, and that the nonunion employees were not required to pay any money to support the union s other political speech or activities. Though the fee requirement has an impact on [employees ] First Amendment interests, that impact was not so great as to outweigh the interests of labor relations, and therefore the fair share fee was not unconstitutional. Abood v. Detroit Bd. of Ed., 431 U.S. 209, 222 223 (1977). Notably, though Justices Rehnquist and Powell wrote concurring opinions expressing some disagreement with the majority s reasoning in Abood, no one dissented. Justice Powell joined by Chief Justice Burger and Justice Blackmun wanted a more extensive examination of the First Amendment concerns, but did not indicate any belief that the government s interests in labor relations could not still overcome those First Amendment concerns. Id. at 263 264 (Powell, J., concurring in the judgment). And Justice Rehnquist actually referred to his position in another case (Elrod v. Burns, 427 U.S. 347, 376 (1976) (Powell, J., dissenting, joined by C.J. Burger and J. Rehnquist)) to indicate that he had no problem, under the First Amendment, with requiring public employees to contribute to the collective bargaining expenses of a labor union. Abood, 431 U.S. at 242 244 (Rehnquist, J., concurring). In other words, the same conservative justices who had no problem curbing the scope of First Amendment protections in the Connick and Rankin cases, also didn t seem to have much of a problem with curbing the scope of the First Amendment where the narrower, anti-union right to work was concerned. In short, the narrower right to work up through and after Abood was about only the right to work without having to join a union, and without having to financially support a union s political activities. But now things have changed. Harris v. Quinn and the New Right to Work The facts, details and potential ramifications of the Harris decision have been covered extensively. In short, the Supreme Court in an opinion by Justice Alito, joined by Chief Justice Roberts and Justices Scalia, Thomas and Kennedy created a new class of "quasi-public employees," to distinguish Harris from Abood, and then held in direct contrast to Abood that requiring these employees to pay a fair share fee to support the union s collective bargaining efforts violated the employees First Amendment rights. Harris v. Quinn, U.S., 134 S. Ct. 2618 (June 30, 2014). What is most striking about the Harris decision is its break with past jurisprudence and specifically with its break from past conservative jurisprudence. As demonstrated above, Supreme Court conservatives have for decades rejected using the First Amendment to protect the right to work. In Abood, the high court s most stalwart conservatives even agreed with the rejection of a First Amendment challenge to a fair share fee requirement. In fact, the Harris majority is the exact same majority that, just a few years ago in Garcetti, rejected a First Amendment challenge to an adverse employment action by declaring that government employers need a significant degree of control over their employees words and actions. 547 U.S. at 418. Why this should justify actions against a public employee in Garcetti, but cannot justify requiring public employees to pay a fair share fee to support a union s efforts to improve working conditions, is difficult to discern.

Over the past 10 years or more, the increasingly anti-union rhetoric of the political right, combined with the increasingly popular view that the Roberts Court believes in expansive First Amendment rights, perhaps made the Harris decision seem natural and even predictable, coming from the Supreme Court s conservative majority. But, make no mistake: Harris represents something new a shift in the conservative view of the First Amendment in the context of public employment and a significant broadening of what was once a much narrower right to work in the context of public employee unions. By Jason P. Steed, Bell Nunnally & Martin LLP Jason Steed is an associate in Bell Nunnally & Martin's Dallas office. Originally published on Law360, September 2, 2014. Posted with permission.