Mark Herring Sided With Big Labor Against Individual Constitutional Rights

For 70 years, Virginia’s Right to Work law has prohibited the firing of employees for refusal to join or pay dues and fees to a union they never invited and don’t want. This freedom from union coercion is overwhelmingly popular with the citizens of the Old Dominion, and savvy politicians know it. Even union-label candidates for statewide office in Virginia rarely say they are in favor of making any changes to the Virginia Right to Work law.

Occasionally, state politicians will try to undermine voluntary unionism without directly going after the Right to Work law directly. Just as Attorney General Mark Herring (D) did two years ago when he joined 18 attorneys general representing forced-unionism states to file a brief urging the U.S. to rule in favor of government union bosses and their allied politicians in a Supreme Court case.

Specifically, Herring and the other attorneys general urged the High Court to continue allowing statutes that authorize the termination of public servants for refusal to bankroll an unwanted union.

Pro-Right to Work Americans agree government officials violate the First Amendment when they empower Big Labor to have government employees fired merely for refusing to bankroll union-boss advocacy. However, Mark Herring, who wants another four-years as Right to Work Virginia’s Attorney General, insists it’s “reasonable” to force public employees to pay Big Labor Bosses or be terminated. Photo: Zach Gibson/Getty Images.

Four decades ago, when Justice Potter Stewart imposed this sanction on government employees, he admitted that forcing public employees who oppose unionization to finance union bargaining activities “interferes” with their First Amendment rights, but deemed “labor peace” to be more significant than constitutional rights.

Almost two years ago, Stewart’s reasoning was challenged in Friedrichs v. California Teachers Association, a case based principally on precedents argued and won by National Right to Work Legal Defense Foundation attorneys on behalf of employee clients. The plaintiffs in this case, represented by attorneys for the Center for Individual Rights and the Jones Day law firm, sought to overturn Abood and prohibit the extraction of forced union dues and fees from public servants as a condition of employment in every state where it was still permitted.

At the Friedrichs hearing, Justice Anthony Kennedy wondered aloud if the government interest in “labor peace” could even potentially have sufficient weight to justify systematic and preemptive interference with the First Amendment rights of a whole class of employees:

I suppose  … we could assume that a State always benefitted and … is more efficient if it can suppress speech.”

In their November 2015 Friedrichs brief (see the first link below to read the whole thing), Herring and company left no doubt about their stance: The preservation of “labor peace” is definitely reason enough for elected officials to trample employees’ freedom of speech by forcing them to bankroll Big Labor speech regarding workplace issues with which they disagree.

Unfortunately for the union-label attorneys general, by late 2015 the “labor peace” excuse was thoroughly discredited by events.

According to top bosses of the California Teachers Association union, the principal respondents in Friedrichs, since 1975, when the Golden State statutorily authorized and promoted forced union dues and fees in K-12 public education by adopting the Rodda Act:

There have been more than 170 California public school strikes, sickouts and other work stoppages.  (See the second link below for more information.)

No reasonable person could conclude from the record that forced financial support for unions as a job condition has fostered “labor peace” in California or any other state where it has been imposed. But Herring relied heavily on this claim to justify his pro-forced unionism position.

What Herring and his allies apparently forgot is that federal courts had already repeatedly ruled that the government as an employer does not have wide constitutional latitude to limit the First Amendment freedom of public employees to join a labor union

In 1969, a federal court overturned North Carolina’s statutory provisions restricting municipal employees’ right to join and assist labor organizations, finding them to be “an abridgment of the freedom of association as protected by the First and Fourteenth Amendments to the U.S. Constitution.”

A month before this decision (Atkins v. City of Charlotte) was issued, the Eighth Circuit U.S. Court of Appeals similarly ruled in American Federation of State, County and Municipal Employees v. Woodward that Nebraska public officials had violated the Constitution when they fired two employees for joining a union.

The decisions reached by the district court in Atkins and the appellate court in Woodward quickly gained acceptance that if a public employee’s choice to associate with a labor union is constitutionally protected, his or her choice to disassociate must be similarly protected.

Consequently, since government restrictions on the individual public employee’s freedom to join a union have been regarded as unconstitutional (except in rare instances where national security is potentially at stake) for nearly half a century, restrictions on the freedom not to join or pay fees to a union must also be unconstitutional.

Freedom-loving Virginians have good reason to be concerned when their state Attorney General seems incapable of recognizing a First Amendment violation, yet Herring seeks to continue to be Virginia’s chief law enforcement officer for four more years.

Brief amici curiae of States of New York, et al. filed.

Collective Bargaining – California Teachers Association