SCOTUS Stands Up for Public-Sector Workers

National Review Online

Wednesday, June 27, 2018

Public-sector unions have thrived, in large part, by collecting fees from government employees who do not wish to be associated with them. Today, in a victory for the First Amendment, the Supreme Court put an end to this practice in a 5–4 decision written by Justice Samuel Alito.

The case — Janus v. AFSCME — overturns 1977’s Abood, the Court’s ham-handed attempt to reconcile the financial claims of public-sector unions with the constitutional rights of public employees. Under that ruling, while public-sector workers couldn’t be compelled to join a union or pay for the union’s political activities, they could be required to pay “agency fees” to cover labor activities such as negotiating contracts and handling grievances. In the present case, the fees amounted to nearly 80 percent of full union dues.

As the Court noted today, this arrangement is not satisfactory. For one thing, the distinction between political and labor activities is difficult to draw; non-members in this case were told they had to support “lobbying,” “social and recreational activities,” “advertising,” “membership meetings and conventions,” “litigation,” and other services that “may ultimately inure to the benefit of the members of the local bargaining unit.” And for another, in the public sector, even unions’ most basic labor activities are inherently political as well: “It is impossible to argue that the level of . . . state spending for employee benefits . . . is not a matter of great public concern,” Alito wrote, quoting another recent decision.

Nor are there other “state interests” compelling enough to support this infringement on public employees’ rights. The Abood decision claimed that agency fees were crucial to the “labor peace” that unions allegedly create, for instance, but developments since then have proved this justification a sham. More than half the states, as well as the federal government, do not allow agency fees, and unions represent millions of these governments’ employees nonetheless.

Abood also cited concerns about “free riding.” Once elected, the story goes, a union is legally obligated to represent non-members in addition to members, and therefore is entitled to compensation from everyone. But this, too, misleads. Unions do not have to seek election as workers’ “exclusive representative” to begin with, and “members-only unions” are fairly common in some states.

Unions generally do seek exclusive representation merely because they want the power that comes with it. As the Court explains, “Not only is the union given the exclusive right to speak for all the employees in collective bargaining, but the employer is required by state law to listen to and to bargain in good faith with only that union.” In fact, organized labor has been known to oppose legislation to expand members’-only unions precisely because they threaten this power. As James Sherk of the Heritage Foundation has written, “unions care about free-riding to the extent it justifies forced dues. They do not actually want to stop representing ‘free riders.’”

AFSCME made some additional arguments as well in Janus, none any more convincing. One held, for example, that the First Amendment, as originally understood, granted no free-speech rights to public employees. As the Court noted, public-sector unions most certainly do not endorse that reasoning in full; they ask “instead that we apply the Constitution’s supposed original meaning only when it suits them.” More to the point, the evidence produced for this claim — e.g., Founding-era policies regarding officials’ business dealings and electioneering — simply does not prove any such thing.

The union also cited a line of cases starting with 1968’s Pickering, in a painful attempt to reach the result of Abood through another route. As Alito explains in painstaking detail, these cases dealt with a topic that is tangentially related at best (when and how the government may restrict, not compel, its employees’ speech), and they don’t justify mandatory fees for public-sector unions even if one forces them to fit the situation at hand.

Our labor laws entitle unions to represent workers who don’t want to join. Those workers should not have to pay for the privilege. For a government employer to require otherwise is a clear violation of the Constitution, and the Court was wise to recognize it as such.