Supreme Court Takes Up Challenge to Forced Public-Employee Unionism

Mark Janus is standing up to AFSCME.

The resolve of unions to coerce support from unwilling employees shouldn’t be underestimated. Neither should the resistance of such employees. On September 28, the U.S. Supreme Court announced it would hear an appeal in Janus v. AFSCME Council 31, a case challenging the authority of public-sector unions to impose representation-related dues (“agency fees”) upon non-member workers. If successful, the plaintiffs, a State of Illinois child support specialist and two other public employees, will have overturned the basis for 40 years of union-driven bargaining that has pushed many state and local governments to the brink of insolvency. The Court was deadlocked in a similar case last year.

Union Corruption Update has visited this issue several times, most recently in late-March 2016. The U.S. Supreme Court at the time had announced that it was unable to break a 4-4 tie in Friedrichs v. California Teachers Association over whether public-sector unions may force non-joining workers to choose between paying financial tribute or losing their jobs, adding that it would not revisit the case. The stalemate resulted from the death of Justice Antonin Scalia only weeks earlier. In that case, an Anaheim teacher, Rebecca Friedrichs, along with nine other nonunion public-school employees and a private school teachers group, argued that the 325,000-member association, an affiliate of the National Education Association, by deducting agency fees from their paychecks without their consent, violated their First Amendment rights. The Supreme Court, unexpectedly, had granted standing to Ms. Friedrichs and her co-plaintiffs the previous June.

Public-sector unions have been in battle mode since that case was first heard. They recognized the threat to their monopoly bargaining privileges established in 1977 by the Supreme Court in Abood v. Detroit Board of Education. In that case, the High Court concluded that a public school teachers union had the constitutional authority to collect dues from nonmember employees under contract even if the employees objected. The decision served as a green light for public-sector unions representing a wide range of occupations to escalate contract demands and elect (and re-elect) supportive political office-seekers. With labor and management often on the same page, public-sector wages, salaries and (especially) benefits grew way out of proportion relative to private sector. The current pension crises in Illinois, New Jersey, Rhode Island and other states, to a very real extent, can be traced back to Abood.

Momentum since Abood has been on the side of dissenting workers. In 1986 the Supreme Court ruled in Chicago Teachers Union v. Hudson that a union cannot decide on an agency fee schedule for nonmembers without first soliciting input from them. In 1991 the High Court ruled in Lehnert v. Ferris Faculty Association that public-sector fees must be “germaine” to the collective bargaining process and must not “significantly add to the burdening of free speech that is inherent in allowance of an agency or union shop.” Much later, in 2012, the Court concluded in Knox v. SEIU that a Sacramento affiliate of the Service Employees International Union had acted illegally in imposing a special assessment on each covered employee, whether a member or not, in order to fund organized opposition to two California statewide ballot initiatives seven years earlier. And in 2014, in Harris v. Quinn, the High Court ruled that nonunion private-sector home care providers in Illinois could not be forced to pay dues to a public employee union simply because a portion of their paychecks came out of state Medicaid funds. The majority opinion, written by Justice Samuel Alito, hinted that Abood itself was unconstitutional. It is a “bedrock principle,” he wrote, that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Had the Supreme Court ruled in Friedrichs, it might well have overturned Abood. The untimely death of Justice Scalia on February 13, 2016 put an end to that possibility. The eight remaining justices, irrevocably split 4-to-4, decided to dismiss the case. President Obama in mid-March, two weeks before the announcement, had named Merrick Garland, chief judge for the District of Columbia federal appeals court, to fill Scalia’s vacant seat. Senate Republicans, led by Majority Leader Mitch McConnell, R-Ky., declared they would not consider Merrick or any other nominee of Obama; replacing Scalia would be up to the next president. They prevailed. Fate took another turn in their favor that November when Donald Trump was elected president. Less than two weeks in office, President Trump nominated Neil Gorsuch, a Colorado-based federal appeals court judge and an acolyte of Antonin Scalia, to the Supreme Court. The full Senate in April confirmed Gorsuch’s nomination by 54-45, thus lessening the likelihood that a challenge to the public-sector union shop would fall short again.

The challenge would come from Illinois. Back in February 2015, Republican Governor Bruce Rauner issued an executive order that would bar agreements between public-sector unions and the State to force non-member public employees to pay agency fees. He also filed a federal lawsuit against unions collecting the fees, requesting that the Court declare such payments to be in violation the First Amendment. The court threw out the suit, claiming Governor Rauner had no standing, as he was not among those forced to pay. A dissenting child support specialist at the Illinois Department of Healthcare and Family Services, Mark Janus (in photo), however, was in a position to rectify that situation. On March 23 of that year, he and two other state employees, aided by the Springfield, Va.-based National Right to Work Legal Defense Foundation and the Chicago-based Liberty Justice Center, filed a motion to intervene as plaintiffs against an Illinois affiliate of the American Federation of State, County and Municipal Employees (AFSCME). The plaintiffs would have an uphill fight. The intervenor on behalf of the defendants was Illinois Attorney General Lisa Madigan.

Janus argued that a $44 per month assessment by the union amounted to a denial of his liberties under the First Amendment. In a January 5, 2016 guest opinion piece for the Chicago Tribune, on the eve of the Supreme Court review of Friedrichs, Janus explained his position:

I am not anti-union. Unions have their place. And some people like them.

But unions aren’t a fit for everyone. And I shouldn’t be forced to pay money to a union if I don’t think it does a good job representing my interests.

When I bring this up, people often tell me I’m not forced to pay for union politics, meaning the extra amounts that some employees choose to give toward political action groups that make candidate donations. (This implies that it is acceptable to force people to pay private organizations for other reasons).

In half the states, including Indiana, Wisconsin and Michigan, people who work in government can choose whether they want to pay money to a union.

Why shouldn’t all government workers have that right? What are the unions afraid of?

The First Amendment guarantees freedom of speech and freedom of association. I don’t want to be associated with a union that claims to represent my interests and me when it really doesn’t.

The district court, sufficiently swayed by such reasoning, this time granted the motion. But after the Supreme Court dropped the Friedrichs case, U.S. District Judge Robert Gettleman changed his mind and retracted certiorari. The U.S. Court of Appeals for the Seventh Circuit dismissed the case this March 21.

Yet all was not lost for the dissenting employees. With the ascension of Neil Gorsuch to the Supreme Court in April, another deadlock was unlikely. And on September 28, the High Court announced that it would hear Mark Janus’ complaint. Jacob Huebert, director of litigation at the Chicago-based Liberty Justice Center, argued:

We are pleased the Supreme Court has agreed to take up this case and revisit a 40-year-old precedent that has allowed governments to violate the First Amendment rights of millions of workers. People shouldn’t be forced to surrender their First Amendment right to decide for themselves what organizations they support just because they decide to work for the state, their local government or a public school.

Organized labor is not pleased. The nation’s four largest public-sector unions – AFSCME, the American Federation of Teachers (AFT), the National Education Association (NEA) and the Service Employees International Union (SEIU) – issued a joint statement calling the suit “a blatantly political and well-funded plot to use the highest court in the land to further rig the economic rules against everyday working people.” With typical Left-populist fervor, AFT President Randi Weingarten commented: “These powerful interests want to gut one of the latest remaining checks on their control – a strong and united labor movement that fights for equity and opportunity for all, not just the privileged few.” AFSCME in particular is primed: “(A)ttacking the freedom of working people to come together is exactly what the Janus v. AFSCME lawsuit is all about,” the union has declared. “Although fronted by a lone state employee, the case is bankrolled by the National Right to Work Foundation and the Liberty Justice Center – the litigation wing of the Illinois Policy Institute – part of a network funded by billionaires and corporate CEOs who use their massive fortunes to tilt the playing field in their favor.”

These statements get it all wrong. An individual worker has a moral and constitutional right to decide whether or not to join or otherwise support a union. Moreover, the people who stand to benefit the most if Mark Janus wins are not “billionaires” or the “privileged few”; they are overwhelmingly middle-class civil servants being forced by law to fund union organizing, negotiating, lobbying and public relations. It is public-sector unions, having cultivated close relationships with elected officials at all levels of government, who have accumulated power at the expense of the many. As authors Mallory and Elizabeth Factor argue in their book of several years ago, Shadowbosses: Government Unions Control America and Rob Taxpayers Blind (Center Street): “(T)he culture of ‘public service’ has changed from a focus on giving to a focus on getting. And through their incessant focus on extracting more from the employer, unions have encouraged government workers to consider their jobs as an entitlement, not a privilege.”

The Supreme Court is set to decide Janus v. AFSCME by the end of next June. A ruling in favor of the plaintiffs would induce any number of states to revise their laws to protect government employees from being forced to pay financial tribute to a union. With less power to coerce, unions would be less able to make contract demands of a magnitude that would put the general population at risk. In Illinois, where the Janus case originated, unfunded state and local pension liabilities have reached an estimated $130 billion or about $10,000 for every man, woman and child in the state. Unions such as AFSCME and NEA are public-sector unions, but they are not public-spirited. They exist to promote the interests of their members. They, along with the officials with whom they negotiate, mutually benefit from an ongoing expansion of government. People like Rebecca Friedrichs and Mark Janus represent a welcome countervailing force.