Supreme Court Could Free Gov’t Workers from Forced Union Dues

(Quin Hillyer, Liberty Headlines) The U.S. Supreme Court agreed Thursday to consider whether government employees should be free to withhold dues from unions to which they don’t belong.

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PHOTO: Phil Roeder/Creative Commons

Until now, many government workers have been forced to pay dues for “collective bargaining” by union bosses even if the workers choose not to belong to the union. The Supreme Court considered overturning this state of affairs in the 2016 case of Friedrichs v. CTA, but with a court seat vacant due to the death of Justice Antonin Scalia, the justices split 4-4 and thus left the issue unanswered.

The new case the Supreme Court agreed to consider, Janus v. American Federation of State, County, and Municipal Employees (AFSCME), involves Mark Janus, a child support specialist in the Illinois Department of Healthcare and Family. He is not a member of AFSCME, but Illinois nonetheless deducts a fee from his paycheck in order to cover what the union says is Janus’s share of the union’s expenses for collective bargaining and related administrative efforts.

Janus does not agree with the union’s bargaining position with regard to what at heart is a political dispute concerning how, and how much, Illinois pays its public employees. Presumably, he believes he can get a better deal under the policies pushed by Republican governor Bruce Rauner than under the one-size-fits-all system favored by the union bosses.

Among the reforms pushed by Rauner is a system of “merit pay,” through which employees who meet certain attendance benchmarks might earn extra money. Janus, in effect, argues that the union’s “negotiations” to the contrary deny him the chance to earn this merit pay, and that he should not be forced to pay dues to an organization to which he not only does not belong but which also does not represent his interests as he perceives them.

Leaving aside those practical issues, Janus argues that the regime of forced union dues violates the Constitution’s First Amendment protections for free speech. It is long established that government may not compel its workers to support political advocacy with which it does not agree. Janus argues, in effect, that negotiations over compensation for public employees, which involves a choice among public policy options, amount to political advocacy. If he disagrees with what is being advocated, then if he is forced to pay for those negotiations he will be denied his First Amendment rights to avoid participation in unwanted speech.

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It already has been established that no mandatory dues can be funneled to the coffers of a political party. Janus’ legal brief thus argues this:

“There is … little distinction between forcing Illinois public employees to directly support the Democratic Party… and requiring Illinois public employees to financially support advocacy groups with agendas closely aligned with that political party.”

In reply, the union bosses first argue that the current arrangement was ratified by the Supreme Court in the 1977 case of Abood v. Detroit Board of Education, and that it should not be changed. Second, they argue that “collection of the fees is justified by States’ strong interest in promoting labor peace through collective bargaining and in avoiding the ‘free rider’ incentive that would arise if non-member employees could avoid paying any dues while nevertheless retaining the benefits of representation by an informed and expert negotiator.”

But the union bosses clearly are playing defense right now, with the National Right to Work Legal Defense Foundation – which supports the “worker freedom” position of Mr. Janus – showing clear enthusiasm for the Supreme Court’s decision to hear the case.

“We are now one step closer to freeing over 5 million public sector teachers, police officers, firefighters, and other employees from the injustice of being forced to subsidize a union as a condition of working for their own government,” said Mark Mix, president of the organization.

For the union bosses, this could be a do-or-die case. As the Washington Examiner reported, “An internal survey the union did in 2015 found only one-third of its members would voluntarily pay dues no matter what, and half of its membership couldn’t be counted upon to do that. A minority of 15 percent would be certain to opt-out of paying dues.”