On July 12, 1810, a trial of trade unionists began in New York City. In 1794, Philadelphia shoemakers organized the “Federal Society of Journeymen Cordwainers.” Similarly New York bootmakers joined.
In 1805, the union struck in Philadelphia for higher wages. The New York bootmakers were found guilty and fined one dollar. The law stated that “Even to do a thing which is lawful in itself, by conspiracy, is unlawful.” An indictment charged that memebrs of a bookers’ union agreed not to work for any person who employed a non-union member. The goal was for all bootmakers to join the union. And the early American jurisprudence failed to see the legality behind these trade unions. Douglas, then, points to a shift with Commonwealth v. Hunt.
The Massachusetts Supreme Court in 1842 found that the purpose was not unlawful for it might aim at improving the condition of the workers. The legality of an association of laborers depended upon the means by which they used to accomplish their goals. Since the bootmakers used no unlawful means, the court held there was no indictable offense. As Justice Douglas wrote in An Almanac of Liberty, “Since 1842, in this county, the legality of union activities has turned largely on the ‘end’ sough and the ‘means’ used.” Douglas would hate the recent Janus decision.
Janus v. AFSCME
Illinois, like 22 others states, feared the free-loader problem. Unions charge fees of its members for their services. But they needed to break apart their political activities with their union activities. In other words, you did not need to join the union, but you needed to pay its collective-bargaining fees. The Supreme Court ruled that this was an unconstitutional violation for non-members. Logically, it makes sense. It feels like compelled speech, which the First Amendment abhors. However, as Justice Kagan states in her dissent, “Government employers, like private employers, need a significant degree of control over their employees’ words in order to efficient[ly] provi[de] public services.” Additionally, when you look at the logic behind previous decisions, you understand why labor laws came into existence.
Unions and Compelled Speech
Douglas would look at the ends and the means. The means required that the union would collect agency fees from the non-members. The end would be better wages for public employees. In fact, in Abood, which the Court overruled with Janus, the Court quoted from a Douglas concurrence.
His concurrence started in a way that looked very Douglas-y:
Some forced associations are inevitable in an industrial society. One who of necessity rides busses and street cars does not have the freedom that John Muir and Walt Whitman extolled. The very existence of a factory brings into being human colonies. Public housing in some areas may of necessity take the form of apartment buildings which to some may be as repulsive as ant hills. Yet people in teeming communities often have no other choice.
In other words, the means justified the ends.
Machinists v. Street, 367 U.S. 740 (1961)
In Machinists v. Street, 367 U.S. 740 (1961), several railway workers sued to enjoin enforcement of a union shop agreement, which required all employees to join the union and to pay initiation fees, assessments and dues in order to keep their jobs. They argued the money went to finance political candidates they opposed. The Court held that a union may constitutionally compel contributions from dissenting nonmembers in an agency shop only for the costs of performing the union’s statutory duties as exclusive bargaining agent. Douglas concurred mainly to add his concern that the employees would not classify as a class since they are individuals who have individual complaints about the use of their fees.
However, the views held by the Court in Janus did appear in the words of First Amendment purist, Justice Hugo Black. But even he held the difference that would become law in Abood:
I think workers have as much right to their own views about matters affecting unions as they have to views about other matters in the fields of politics and economics. Indeed, some of their most strongly held views are apt to be precisely on the subject of unions, just as questions of law reform, court procedure, selection of judges and other aspects of the “administration of justice” give rise to some of the deepest and most irreconcilable differences among lawyers. In my view, § 2, Eleventh, can constitutionally authorize no more than to make a worker pay dues to a union for the sole purpose of defraying the cost of acting as his bargaining agent.
But even though these thoughts and concepts track back over 50 years, the current Supreme Court does not care about that precedent.
Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)
A Michigan statute authorized union representation of local governmental employees and permited an “agency shop” arrangement. This provided that every employee represented by a union, even though not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues.
In Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), the Court held that
An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative. His moral or religious views about the desirability of abortion may not square with the union’s policy in negotiating a medical benefits plan. One individual might disagree with a union policy of negotiating limits on the right to strike, believing that to be the road to serfdom for the working class, while another might have economic or political objections to unionism itself. An employee might object to the union’s wage policy because it violates guidelines designed to limit inflation, or might object to the union’s seeking a clause in the collective bargaining agreement proscribing racial discrimination.
The examples could be multiplied. To be required to help finance the union as a collective bargaining agent might well be thought, therefore, to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.
They then quoted Justice Douglas:
“The furtherance of the common cause leaves some leeway for the leadership of the group. As long as they act to promote the cause which justified bringing the group together, the individual cannot withdraw his financial support merely because he disagrees with the group’s strategy. ” Machinists v. Street, 367 U.S. at 778.
Douglas loved unions. When you read through his opinions, including Street, you see his adoration. He believed that workers needed protections. With all of the different liberties he worried about, he knew that employees had a weak standing next to their employer. As we look at what the current Court begins to do in regards to employees, corporations, and unions, we need to recognize, the First Amendment can become a weapon that powerful entities utilize against the less fortunate. Justice Black wanted the First Amendment to stand purely. But even he could differentiate between political activities and bargaining. Sadly, for the next thirty years, this Court will reduce the liberties of individuals for the powerful. To paraphrase Justice Douglas, since 2018, in this country, the legality of union activities has turned largely into an end where they need to prove their means without any support of labor laws.