“What our cases say is that you can be compelled not to be a free rider… to pay for those items of bargaining that benefit you as well as everybody else…” –Justice Scalia (2014)
A general prohibition on trade unions from engaging in any political activities would not only be incompatible with the principles of freedom of association, but also unrealistic in practice…” ILO Freedom of association Digest (4th rev. ed.)(1996)
Barbadians might not readily appreciate the extent to which a judicial decision on a point of constitutional interpretation is, essentially, an ideological exercise. In contrast, the USA context, where the Supreme Court is charged exclusively with the authoritative interpretation of the Federal Constitution, provides a clearer example of this phenomenon.
There, the ideological divide lies not purely in the jurisprudence of constitutional interpretation itself, but also in the ostensibly partisan political leanings of the judge. Hence there exists one branch of the Court that adheres to an “originalist” interpretation of the Constitution –that the text means precisely what the founding fathers would have intended it to mean, no more, no less. These are usually the so-called conservatives, (often nominated by a Republican President, although there have been some egregious exceptions to this).
On the other hand, the so-called liberal branch of the Court (usually nominated by a Democratic president) frequently espouse the view that the Constitution is organic and should be interpreted progressively in accordance with the modern ethos; situations that the founding fathers could not at all have contemplated.
Our Constitution, a document of comparatively recent vintage, is more closely drafted than, or rather not as broadly drafted as, its US counterpart. Hence, there is little room left for jurisprudential ideology in our system, although there may be some avenues for partisan political decisions under the guise of judicial restraint –where the judicial officer may refrain from deciding the issue on any constitutional ground at all-, or judicial activism –where the judge decides the matter in accordance with his or her perception of what the law ought to be. The current praxis, whereby local judges are in substance appointed by the governing political administration of the day and the actuality that constitutional issues inevitably involve the state as the respondent, together create the perfect storm for partisan considerations to influence a judicial decision in this area.
Nevertheless, happy to relate and to its credit, in my view, the local judiciary has, so far, been largely beyond reproach in this regard, although there may have been one or two decisions that might have caused quizzical eyebrows to be raised in both some lay and learned quarters.
On the US Supreme Court however, where the issue is far less opaque, the recent death and non-replacement (so far) of Justice Antonin Scalia, who might fairly have been regarded as the eminence grise of the conservative originalist-construction wing of the Court, has resulted in an equality of voices on either side of both ideological divides.
Constitutionally, this entails that the decisions of the courts below from which the matter has been appealed will remain in force. Hence, the attempt by the Republican-controlled Senate to prevent President Obama from having the current vacancy filled by his nominee thus, at least presumptively, placing the balance of judicial opinion firmly in favour of the liberal “progressive-construction” wing of the Bench.
There was one such outcome in the past week, where the Court was called upon to determine whether it was constitutional for a public service union to collect fees from workers who chose not the join the union and did not want to pay for the union’s collective bargaining activities. This issue may be of more than critical importance for the local public sector unions and public officers.
Under California law, and that of at least 20 other states, according to the New York Times, public employees who choose not to join unions must pay a “fair share service fee” also known as an “agency fee”; typically equivalent to the union dues paid by members. The notion is that these fees are meant to offset the costs of collective bargaining, including the cost of lobbying activities, from which these non-member employees also reap the remunerative fruits.
It had already been decided that government workers who were not members of the union, and even members, were exempt from paying for political activities of the union such as campaign contributions and spending since this would have been a violation of the First Amendment that restrains the State from compelling or restricting political expression.
The ultimate 4-4 division of the Court meant that the labour union’s argument that collective bargaining is not a political activity and thus not an element of political expression succeeded, as had been previously upheld in a 1977 Supreme Court decision from Detroit.
Given the relative poverty of local labour organizations nowadays, it bears consideration as to whether an identical result would not obtain here. Of course, this is all in the realm of speculation at this stage since the requirement to pay any fees at all by non-members would have to be the subject matter of statutory enactment, given the local constitutional guarantee of freedom of association. Certainly, given the strict partisan political divide in Barbados, there is little probability of any union, as an organization, financially supporting one party over another to the knowledge of its membership. This should be ordinarily left up to the individual member, so that the question of compelling political speech by the payment of union dues would scarcely arise.
However, it might someday be determined by officialdom that the concept of the “free-riding non-member” in unions is not at all to be countenanced. Would the consequent legislation to that effect be considered unduly restrictive of political expression? Or would it simply be a matter of enforcing the payment of the individual’s fair share for a benefit that others have negotiated in good faith?