September 28, 2017

Compulsory union subsidies on the chopping block

By Deborah J. La Fetra Senior Attorney

The First Amendment protects the right to speak and associate as well as the right to refrain from speaking and associating. Today the Supreme Court decided to hear the First Amendment case – Janus v. AFSCME – that will determine whether non-union public employees must continue to subsidize the very unions they do not want to join or support. The only reason these non-union workers have to pay “agency shop fees” to support the union’s collective bargaining and activities is because of an ill-considered 1977 Supreme Court opinion, Abood v. Detroit Board of Education. That case rejected a First Amendment challenge to forced association with the unions and allows the unions to garnish the wages of unconsenting public employees. Recent decisions eroded the premises underlying the Abood decision, however, and the Court was poised to overrule it entirely in Friedrichs v. California Teachers Association, only to have that case end in a tie vote after Justice Scalia’s death. Now the Court will determine the fate of public employee unions’ ability to garnish workers’ paychecks for the inherently political act of collective bargaining for taxpayer-funded wages and benefits.

Unions exist to promote the economic interests of their members, starting with negotiation of wages and benefits and extending to a wide variety of government policies that affect, even tangentially, the unionized workforce. They are private interest groups. But unlike their private-sector counterparts, the wages, benefits, working conditions, and opportunities for which public-sector unions negotiate are provided exclusively by the government, and paid for exclusively through tax dollars. Union leadership does not represent the views of every public employee, and many workers choose not to join the union. Under Abood, however, even non-members are forced to subsidize the union’s lobbying activities connected with collective bargaining and other work-related issues (a very broad category, given the nature of government work). Given the substantial disadvantage nonconsenting workers face when dealing with the powerful social, legal, and political institutions governing organized labor, the Court must above all act to protect these workers from a system that exploits them and violates their rights of property, expression, and choice.

Congratulations to our friends and allies at the National Right to Work Legal Defense Foundation, who represent Mark Janus and, indirectly, all workers who choose to work independently, without subsidizing a union. PLF urged the Court to take this case, and we will be filing a brief on the merits making the case for all workers’ First Amendment freedoms.

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Janus v. American Federation of State, County & Municipal Employees, Council 31

The Illinois Public Labor Relations Act authorized public employee unions to collect “fair share” or “agency shop” fees from nonmember employees. Allowed under the 1977 Supreme Court decision in Abood v. Detroit Board of Education, the Illinois law allowed the AFSCME union to steal $535 per year from Mark Janus and every nonunion employee. Janus sued, arguing the law violates the First Amendment. PLF and an array of allies filed a friend-of-the-court brief in support of Janus at the U.S. Supreme Court. And in a 5—4 decision announced June 27, 2018, the High Court overruled Abood, agreeing with Janus that the 1977 ruling is incompatible with the First Amendment.

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