You Are Not the Boss of Me: The Freedom to Choose in a Union Shop

By Jon A. Bierman

On Monday January 11, 2016, the United States Supreme Court heard argument in the case of Friedrichs v. California Teachers Association and, although nothing is certain until the Court issues its opinion, it appears likely that the Court will overturn precedent and hold that public employees cannot be forced to pay any amounts to unions, even if those payments are earmarked to pay for the costs of collective bargaining as opposed to political activities like campaign contributions. Although the outcome of this case will not directly impact private sector employment, the discussion surrounding Friedrichs affords an opportunity to remind private sector employers that, even in non-right to work states, employees cannot be forced to become union members.  

The plaintiffs in Friedrichs argued convincingly that when the employer is a governmental entity, collective bargaining itself is political speech and that forced participation in that speech violates public employees’ First Amendment rights. If the Court rules as expected, the case will have significant implications for public employers and for the unions that rely upon the dues and agency fees paid by public employees.  

Regarding the private sector, the United States Supreme Court has long held that no private sector employee can be forced to join a union and pay full dues. Rather, employees in non-right to work states who work under the terms of a collective bargaining agreement that contains a union security clause can only be compelled to become core financial members and pay to a union only those amounts attributable to collective bargaining activities, as opposed to political activities. In addition, core financial members are not subject to union discipline.  

Private sector employers should not assist, and should scrupulously avoid the appearance of assisting, their employees in withdrawing their union membership in favor of core financial member status, as such activities could constitute unfair labor practices. There are, of course, many excellent free resources available on the internet for private sector union environment employees to learn about their right to resist union membership and assert their rights to free association and free speech.

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