June 27, 2018

First Amendment wins! Unions cannot steal non-members’ wages

By Deborah J. La Fetra Senior Attorney

After 40 years of garnishing worker paychecks under the authority of Abood v. Detroit Board of Education, today the Supreme Court held in Janus v. AFSCME that the coercion must end. In a 5-4 split, the Court today holds that the First Amendment prohibits states from giving public employee unions the special privilege of docking the wages of non-union members to support the unions’ collective bargaining and other political activities, without those workers’ consent. The Illinois law challenged in this case allowed the AFSCME union to steal $535 per year from Mark Janus and every non-union employee. PLF—and an array of allies—supported Janus as amicus curiae.

With Justice Alito writing for the majority, the Court squarely holds that Abood is incompatible with the First Amendment. “When speech is compelled,” the Court explains, “individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning” and undermines “our democratic form of government.” Allowing states to pass laws forcing Janus and other non-union members to support the union’s priorities against their own consciences violates the First Amendment and the basic principle that “‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.’” (quoting Thomas Jefferson).

The Court rejected the interests that it previously accepted in Abood, mostly because the 41 years since that decision proved that the Court’s earlier premises were simply wrong. For example, the Abood Court thought non-union members had to subsidize the unions to ensure labor peace. But “millions of public employees” in 28 states that prohibit agency fees do not have to pay the unions and there has been no evidence that this has harmed labor peace. The Court also rejects the notion that Janus and other non-union employees are “free-riders.” In no other context does the private speech of an interest group compel cash support from non-members who may benefit. “In simple terms,” the Court holds, “the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.” Moreover, the union benefits from designation as the exclusive representative, enjoying a “tremendous increase in [its] power.”

A union’s core interests are the jobs and benefits of its members, and its duty is to defend their members’ private interests, vis-a-vis the employer. Public-sector collective bargaining is an inherently political process because it involves government funding. As the Court notes, a public-sector union’s demand for a 5% raise for thousands of represented employees “could have a serious impact on the budget of the government unit in question, and by the same token, denying a raise might have a significant effect on the performance of government services.” Should street repairs get priority for the limited pool of tax dollars, or should the street repair crew get generous pensions? The Court would not “deny reality” by suggesting that these matters are not of “great public concern.” Importantly, the Court recognized that even a core collective-bargaining component such as handling grievances is of “substantial public importance” and affects a state’s policy choices—that is, it is political. For example, the AFSCME union in this case filed a grievance seeking to compel Illinois to appropriate $75 million for a 2% wage increase. This is “overwhelmingly of substantial public concern.”

The bottom line: “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” The state may not presume that workers would waive their First Amendment rights and therefore the waiver (the agreement to pay the union) must be “free given and shown by ‘clear and compelling’ evidence. . . . Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”

How does today’s decision affect public employee unions going forward? Most importantly, the unions will need to focus on offering value to workers so that they have reasons to join the union voluntarily. When union leadership actually reflects the goals and priorities of the membership, unions will avoid dramatic declines in membership even without the ability to garnish workers’ wages. Union leadership seems to question the persuasive power of their offerings, though, as they have been lobbying hard in several states for special advantages not enjoyed by other voluntary associations, such as state-mandated exclusive access to new employees during their orientation. Such attempts to lock out organizations that would inform workers of their First Amendment rights will undoubtedly lead to further litigation. But today is a day for celebration—for all individual workers nationwide who retain the fundamental right to be true to their own beliefs and to refrain from subsidizing a powerful interest group that opposes them.

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

The Illinois Public Labor Relations Act authorizes public employee unions to collect “fair share” or “agency shop” fees from non-member employees. Two non-member public employees sued to invalidate this law as an unconstitutional infringement on First Amendment rights. The Seventh Circuit Court of Appeals held that one employee was barred because of previous litigation and that the claims of the other employee (Mark Janus) were barred solely because of the Supreme Court’s decision in Abood v. Detroit Board of Education (1977), which permits unions to garnish wages of non-member employees for the purpose of collective bargaining and contract administration. PLF supports Janus’s petition for a writ of certiorari.

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