Can Garrett Epps Really Not Discern the Difference Between a Union Member and a Union Nonmember?

It’s been roughly 56 years since the Supreme Court first gave a judicial green light for employers and union officials to cut deals mandating that front-line employees who refuse to join a labor organization pay dues or fees for union bargaining activities purportedly “benefiting” them.  But in 1963’s General Motors ruling and other such decisions, the High Court has also held that workers may not be forced to become full-fledged union members against their will.  Hence, federal case law and some state statutes distinguish between the rights and obligations of “full union members” and (forced) “agency fee-paying nonmembers.”  Such nonmembers may be forced to pay fees that are potentially as high as full union dues, but may not be forced to pay, over their expressly stated objections, for Big Labor electioneering and lobbying and other nonbargaining activities.

Under General Motors and its progeny, the only way workers subject to a forced-unionism contract can exercise their right not to pay for union politics is not to be union members: by never joining in the first place, or by resigning.   Nearly a quarter century ago, a unanimous federal panel on the Fourth Circuit Court of Appeals found in Kidwell v. TCIU that, by joining a union, you tacitly (if not explicitly) agree to abide by all of its organizational rules.  The union may legally spend your dues money on bargaining activities, or nonbargaining activities, including electioneering and ideological campaigns, without getting your permission.  If you don’t like it, declared the Kidwell court, your solution is to quit the union.  You have no First Amendment right as a union member to refuse to pay for union politics, as long as you remain a member.  To cease paying for union politics, you have to cease being a member.

Because unions have the power under federal and state laws to operate as the “exclusive” (monopoly) bargaining agents of all of the front-line employees in a workplace, including union nonmembers, and only union members get to vote for union officers and on union contracts, the “quit the union” solution has never been a fully satisfactory way for an employee to vindicate his or her First Amendment rights.  But the Kidwell finding has never been successfully challenged in any federal circuit court, and it is consistent with Supreme Court precedents.  In one case currently before a court in the Ninth Circuit, Bain v. CTA, the plaintiffs are effectively contending that Kidwell was wrong and union members should be free not to bankroll union electioneering.  However, this case surely has to be regarded as a long shot.

Unless and until the Kidwell precedent is successfully challenged, union officials will NOT have to get members’ personal permission to use their dues money on electioneering and lobbying.  To exercise the very limited First Amendment freedom not to bankroll Big Labor speech they enjoy under General Motors, etc., union members must first resign from the union.

To a certain degree, the situation of a union member who objects to union political activism is analogous to that of a company shareholder who objects to the lobbying activities of the firm whose stock he or she owns.  If you don’t like a company’s political or ideological activities, or believe they are inadequately disclosed, you have a right not to buy any stock in that company, or sell the shares you own.  By agreeing to own the stock, you become like a union member.  The company does not need your personal permission to spend your money how it chooses, just as a union does not need any individual member’s permission to spend dues money on politics.  Federal law treats shareholders and union members the same in this regard.  The difference is that, as a union nonmember, you can be forced to pay for union bargaining activities as a condition of employment, but as a nonshareholder of a company you cannot legally be forced to give that company any money at all.

Incredibly, in a recent commentary berating Illinois Gov. Bruce Rauner and the Supreme Court’s five-year-old Citizens United decision, rabidly pro-compulsory unionism law professor Garrett Epps suggested that the organizational rights of corporations relative to shareholders, although they are far more modest than the legal privileges union bosses wield over unionized workers, are excessive.  A shareholder should be able to own part of a company, but refuse to pay for any of its ideological activities, contends Epps, even though a union member clearly has no analogous right.  (See the link below to read the entire article by Epps.)

If it were legally possible for an American who chooses not to buy a company’s stock to be required to turn over money to company treasuries as a “nonshareholder,” and the Supreme Court found that companies had unlimited power to spend “nonshareholders'” money on politics without their permission, then Epps would really have something to complain about.  But in the real world, he is just blowing smoke.

If federal or state law ever authorized requiring any American who chooses not to buy a company’s stock to put money in the company’s treasury, all the same, as a “nonshareholder,” and if the Supreme Court found that companies had unrestricted power to spend “nonshareholders'” money on politics without their permission, then pro-forced unionism law professor would actually have something to complain about. But in the real world, he is just blowing smoke. Image:

Breaking the Law—and Blaming the Supreme Court