Will Labor Law Prompt Conservative Justices to Adopt a Radical Theory of State Action?

Source: Joseph E. Slater, Nebraska Law Review, Vol. 96, No. 1, 2017

From the abstract:
With the Supreme Court poised to rule that the First Amendment bars all union-security clauses in public-sector collective bargaining agreements, this article addresses the strong implication in the Harris v. Quinn (2014) that such a rule could be extended to the private sector. Remarkably, the five conservative justices in the majority in Harris, seemed open to the idea that a contract clause two private parties voluntarily agreed to governing terms of employment implicated state action sufficient to trigger constitutional rights. A union security clause provides that employees in a union bargaining unit must pay at least some portion of dues to the union that represents them. Prior to Harris, one old Supreme Court case had found state action in such clauses and another old case had used the doctrine of constitutional avoidance in interpreting the relevant statute. More recent cases on the topic, however, have ignored constitutional issues. Thus, Harris revived an outdated and extraordinarily broad theory of state action.

This article argues that the suggestion that private-sector union security clauses implicate the Constitution involves unconvincing and incoherent understandings of “state action” that the Court should explicitly reject. Such clauses are negotiated between two private entities. Relevant labor law statutes permit (and limit) but do not require them, nor do labor statutes reward parties for adopting them. Such clauses would be entirely legal in the absence of statutory authorization, and indeed, they existed prior to these statutes. Harris entertained a theory that would go beyond the Court’s broadest reading of state action, in Shelley v. Kraemer. Notably, while liberals pushed for this broad approach decades ago in an attempt to fight race discrimination by private parties before the era of anti-discrimination statutes, conservatives pushed for an analogous broad approach to state action specifically to attack unions. But in more recent decades, courts have hewed to a narrower view of state action. No current theory of state action could be stretched to include private-sector union security clauses.

This article examines all the proposed justifications for the position that private-sector union security agreements could constitute state action. It describes the development of state action theories in general. It analyzes specific arguments based on old labor cases, arguments “right to work” advocates have made, and analogies to the Keller case on mandatory bar fees. It concludes that there is no plausible argument that private-sector union security clauses involve state action. It then argues that adopting the suggestions in Harris would have radical and undesirable consequences in labor law generally and beyond. It concludes that courts should reject the suggestion that private-sector union security clauses implicate the First Amendment, and it describes a theory of state action consistent with this result and existing precedent.