The following article by Don McIntosh appears in the Northwest Labor Press:
WASHINGTON, D.C. (Feb. 15, 2018) — Less than two weeks from now — Feb. 26 — the U.S. Supreme Court will hear the most significant labor law case in decades.
In Janus v. AFSCME, a lawyer for an anti-union group will argue that requiring union-represented public employees to pay anything at all to the union would be an unconstitutional violation of their First Amendment free speech rights — because that would be like making them pay for political speech they might disagree with.
The court addressed that same argument more than 40 years ago in a 1977 case called Abood v. Detroit Board of Education and came up with a compromise: Union-represented workers who choose not to join the union don’t have to pay union dues, which pay for political expenses like lobbying, but they can, if state law allows it, be required to pay a lesser amount known as “fair share” fees — fees that cover just the union’s costs of negotiating contracts and representing members. Now, plaintiffs in the Janus case want the court to overturn the Abood decision based on the argument that everything a union does — even grievance handling — is political when the employer is a government.
JUDICIAL ACTIVISM: It’s no accident the Supreme Court is considering Janus v AFSCME. Unlike other courts, it chooses which cases it wants to hear. In a way, Janus originated in 2012, when Supreme Court Justice Samuel Alito (pictured above) wrote the majority opinion in Knox v. SEIU, a case about refunds for workers who don’t want to pay for union political spending. Alito questioned the constitutionality of the Supreme Court’s 1977 Abood decision, which says it’s okay to require public employees to pay their fair share for union representation. His words tipped off anti-union lawyers that they could challenge Abood. In Harris vs. Quinn in 2014, they challenged fair share payments for home care workers in Illinois, but a 5-4 majority decided only that the workers weren’t true state employees. The next attempt was Friedrichs v CTA, which sped through the court system but deadlocked 4-4 after Antonin Scalia died in 2016. With Trump appointee Neil Gorsuch confirmed in 2017, a 5-4 conservative majority was restored. Alito may get his wish.
If a majority of the court agrees, it would result in an immediate financial hit to public sector unions in 23 states, including Oregon, Washington, and California. In effect, the court would be imposing the so-called “right to work” policy on state and local governments nationwide.
The Janus case began with Bruce Rauner, a private equity fund manager with a net worth estimated at close to a billion dollars. Rauner, a Republican, won the November 2014 election for governor of Illinois. One of his first acts in office was an executive order halting the collection of the fair share fees. In hopes of making that order legal, Rauner also filed suit in federal court arguing that the fair share requirement was unconstitutional. The judge ruled that Rauner had no standing to sue since he personally was not a union-represented worker — but the judge allowed the case to move forward by agreeing to remove Rauner as plaintiff and replacing him with an Illinois child support enforcement specialist named Mark Janus.
As an employee of the Illinois Department of Healthcare and Family Services, Janus is represented by AFSCME Council 31. Janus, who makes $71,000 a year under the union contract, objects to paying $45 a month to the union — because it takes political positions he doesn’t support, including advocating more spending on state programs, and higher taxes to pay for it.
But this isn’t the story of one man’s courageous fight against “compulsory unionism.” Janus is merely a vehicle for a network of anti-union legal nonprofits that have been working to give a 5-4 conservative court majority a chance to deal a body blow to their hated political adversary: the labor movement.
Since the Supreme Court agreed last July to hear the Janus case, hundreds of organizations and prominent individuals have filed or signed onto 75 “amicus briefs” in the case. The briefs give a preview of the arguments the court is likely to hear.
The National Right to Work Legal Defense Foundation will argue that the case is about free speech. But if Janus were about free speech, you’d expect the nation’s foremost defender of free speech to support it. Not so: The American Civil Liberties Union (ACLU) argued in an amicus brief that employee free speech is already protected under Abood because nonmembers don’t have to pay any union expenses for political speech. To rule that they can’t be obliged to pay for representation either would trample on another First Amendment right — freedom of association — because it would force union members to pay for nonmember services, the ACLU said:
“Even employees who favor the union’s positions or any benefits it conveys will have every incentive to shift the costs of their representation to members, as they will be able reap the same benefits without spending a dime. As the Internet has repeatedly shown, individuals who get something for free cannot be counted on to voluntarily pay for it.”
In other words, Janus isn’t about free speech; it’s about free riders.