Yesterday, the U.S. Supreme Court heard oral arguments in a challenge to the long accepted rule that when public sector unions negotiate, they negotiate on behalf of all employees, not just those who are members. A person can work at a union work place, but not be a member of the union. If a worker chooses not to join the union, however, s/he still pays a fee to the union. A Teacher in California, Rebecca Friedrichs, filed the lawsuit over some $650 deducted from her pay per year for the union fee. Actual members pay about $1,000 per year. The theory, as explained in the 1977 case, Abood v. Detroit Board of Education, 431 U.S. 209 (1977), is that “free-loaders,” those who receive the benefits, should pay some of the load. See the Abood decision here.

The difficulty for some workers is that the election to form a union might occur decades before a particular worker starts work. Ms. Frieedrichs probably became a teacher decades after the California schools were first unionized. She has no memory of an election, much less losing the election. So, she must feel, why should she have to pay for something that she had no hand in, especially when that union takes stands on issues with which she disagrees?

Her lawsuit targets not the lobbying or political contributions, but the simple fact of the union’s existence. The reduced fee is supposed to account for the political actions of the union. Her $650 does not go toward lobbying. Her lawsuit is more specific. It attacks the fact of the union itself. She argues that the union’s mere existence is political.

The Abood decision rests on contract principles, that an employer should not have to negotiate with more than one entity. If every non-member negotiated his/her own salary and conditions, the employer would be in constant negotiations over some issue. And, said the 1977 court, negotiations, resolving grievances, etc. all requires time and money. The unions need income to survive and to process grievances. Concluded the majority decision, a member or non-member cannot withdraw his/her financial support just because she disagrees with the strategy for that group. So long as the group leader (i.e., union leaders) press forward on issues generally applicable to all members, then the purpose of the National Labor Relations Act is still served.

But, in the past few years, in dissents, Justice Alito has hinted to labor union opponents that the court would re-consider its decision in Abood. So, now we have this appeal. Some observers would call Justice Alito’s hints judicial activism. But, a true conservative would never engage in judicial activism, would he?