Right Wing Assault On Unions

National Right to Work Foundation (NRTW), a right wing think tank funded by large corporations, is on a mission to obliterate unions and collective bargaining in Massachusetts.  It recently filed unfair labor practice charges against various teachers unions claiming that agency fee and the principle of exclusive representation are unconstitutional under the First Amendment.  Emboldened by the recent Supreme Court decision in Harris v. Quinn, NRTW argues that compelling employees to pay their fair share of the cost of collective bargaining and contract administration interferes with their “free speech rights” by compelling non-members to associate with the union.   NRTW has been unsuccessfully advancing this argument since 1977.  In a series of decisions beginning with Abood v. Detroit Board of Education, the U.S. Supreme Court rejected this claim.  The Court has repeatedly held that while employees cannot be forced to join the union, the union has the right to impose agency fees on non-members.   Otherwise, non-members would reap the benefits that the union negotiates without contributing to the costs of securing the collective bargaining agreement.

Even though the Court held way back in 1977 that agency fees were constitutional, NRTW has filed dozens of challenges since then seeking to chip away unions’ ability to collect agency fees from nonmembers.  The purpose of these challenges is to destroy unions.  If employees are not mandated to pay the costs of securing the benefits they enjoy, it will cripple the unions by depriving them of the resources needed to run their organization and to challenge unlawful acts by the employer.

Thus far NRTW’s efforts focus mainly on teacher unions.  Nevertheless, if they succeed, all public sector unions will be crippled.    By and large, public safety unions do not have an issue with agency fee because everyone joins the union.  However, NRTW’s most recent challenge strikes at the heart of collective bargaining itself.  They are arguing that the principle of exclusive representation — the bedrock of unionism — is unconstitutional.  In essence, NRTW argues that unions are unconstitutional because they interfere with individual employee free speech rights. They claim that unions should not have to power to represent employees and bargain on their behalf.  Instead, each employee should have the right to “cut his own deal” without “interference from the union.”  According to NRTW, the existence of unions interferes with employee First Amendment rights to negotiate their own terms and conditions of employment.  Under this theory, unions are unconstitutional.  Even if employees wish to unionize, they would be forbidden from doing so.

NRTW recently filed challenges to agency fee against three MTA locals at the Department of Labor Relations and I defended the unions against these challenges. The hearing officer rejected NRTW’s claims in their entirety.  That decision is now on appeal to the Commonwealth Employment Relations Board.  We fully expect that the Board will affirm the dismissal of the charges.  But the litigation at the DLR is only the first skirmish in the NRTW’s war.  Their counsel indicated that he expected that the charges would be dismissed.  He intends to appeal that determination through the courts to the US Supreme Court, which may be receptive to NRTW’s arguments.  Unions across the country are gearing up to fight this challenge.