By Jason Hart
Friday, December 08, 2017
Public-employee unions are expected to lose their power
to coerce fees from non-members when the Supreme Court rules on an Illinois
government worker’s case next spring. The Trump administration recently
declared its support for this outcome, and new evidence introduced by the
libertarian 1851 Center for Constitutional Law — in a brief I helped to draft —
proves the decision is long overdue.
Attorneys for Mark Janus, the petitioner in the case,
argue that the “agency fees” Janus must pay the American Federation of State,
County and Municipal Employees (AFSCME) to keep his job at the Illinois
Department of Healthcare and Family Services are a violation of his First
Amendment rights because they compel him to subsidize the union’s political
activities — which include collective bargaining, as the wages and benefits of
public employees are a political issue. AFSCME and other public-employee unions
insist that agency fees are not used for truly political purposes, are
necessary to offset the costs union incur representing non-members, and
contribute to “labor peace” in government workplaces. Precedent is on the
unions’ side, but the Court seemed likely to rule against them last year in a
similar case, Rebecca Friedrichs v.
California Teachers Association, before Justice Antonin Scalia’s death led
to an inconclusive 4–4 decision.
Presently, public-employee unions can take mandatory fees
from nonmembers only for representation, collective bargaining, and related
administrative expenses. Even aside from the argument that these activities are
inherently political, the 1851 Center
brief demonstrates that public-employee unions systematically abuse the
collective-bargaining process to advance their organizing efforts and political
interests.
“The bargaining table is one often overlooked vehicle for
increasing the union’s political activity,” an AFSCME “Bargaining for Political
Power” newsletter from 2000 contended. In the newsletter, the union recommended
that its affiliates negotiate contracts making it easy to solicit
political-action-committee contributions from workers, and to have those
contributions deducted from workers’ paychecks.
An AFSCME staff website instructs affiliates to negotiate
contract clauses that force members to pay agency fees, provide “union leave”
to conduct union business on work time, and make it easier to unionize
employees in other departments of the same workplace.
“Neutrality language, guaranteeing that the employer will
not oppose union organizing in unorganized facilities or agencies,” is one of
the suggested items on the AFSCME staff checklist, which also advises locals to
negotiate for “card check” privileges, meaning a union can organize workers
simply by collecting signatures from a majority of them.
In a card-check election, workers have no right to a
secret ballot and can be more easily pressured by union organizers. Currently,
this is allowed only when the employer consents to it. Long one of the labor
movement’s top policy priorities, card check is so controversial that
congressional Democrats dropped a provision allowing it in all elections from
the labor bill they tried to pass early in President Obama’s first term.
The only distinction between AFSCME’s political activity
and AFSCME’s collective-bargaining activity, then, is a legal one. When the
union makes lobbying expenditures in support of card-check legislation and
campaign contributions in support of pro-card-check candidates, it must rely on
dues from members, not mandatory fees from non-members. But AFSCME has been
spending non-members’ agency fees to insert this divisive policy into
public-employee contracts as well.
How long has this the union been doing this? At least 18
years. “An ideal card check agreement would require the employer to provide the
union with data about employees — including names, addresses and phone numbers,
as well as information about shifts, job titles and so on,” a 1999 AFSCME
newsletter explained.
Although data on contracts including card-check language
are not available, the 1851 Center brief includes an analysis of agency fees
and union leave in Ohio’s government workplaces. As of March, 2,162
public-employee-union contracts in the state imposed mandatory agency fees on
non-members, and 1,232 contracts included union-leave clauses. In 26 contracts,
unions have negotiated “super seniority” agreements guaranteeing preferential
treatment to union officers in the event of layoffs.
In addition to using non-members’ forced fees to
negotiate contracts increasing union political power, organizing abilities, and
job security, AFSCME and other public-employee unions have begun inviting
left-wing activist groups into their contract negotiations.
The brief quotes a 2015 speech from American Federation
of Teachers (AFT) president Randi Weingarten, in which she said that unions
“need a new approach that builds power through partnership with community and
leverages that power at the bargaining table to advance community needs.”
To achieve this goal, public-employee unions formed a
coalition in 2014 called Bargaining for the Common Good. According to Joseph
McCartin, a left-wing Georgetown professor who was one of the coalition’s
architects, “participants are consciously attempting to transcend the
traditional bargaining frameworks that are written into law.”
Bargaining for the Common Good is not simply a union
effort to pressure employers into accepting union demands; instead, “unions and
community allies are jointly crafting bargaining demands and are thinking of
individual campaigns as steps in a long-term strategy of worker and citizen
empowerment,” McCartin wrote in a 2016 column for Dissent magazine.
Based on news releases from the coalition — whose members
include AFSCME, AFT, National Education Association, and Service Employees
International Union affiliates — Bargaining for the Common Good principles have
already been put into practice in Illinois, Minnesota, California, Colorado,
and Wisconsin.
Public-employee unions negotiate over government
services, government employees, and government budgets, so it was never
practical to draw a line between which of their activities could and could not
be funded with compelled fees. If the mounting evidence persuades the Supreme
Court to recognize that fact, Mark Janus and millions of other public employees
will finally be able to opt out of funding unions’ political activism without
losing their jobs.
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