Law & the Courts

The Supreme Court Will Probably Strike a Huge Blow to Public-Sector Unions

(Reuters photo: Gary Cameron)
Requiring government workers to fund a political organization is a violation of the First Amendment.

The Supreme Court has announced that it will hear the case Janus v. AFSCME. It will likely prove to be one of the most consequential labor-law cases in U.S. history. At issue is whether public-sector workers can be forced to join or pay fees to a union as a condition of employment.

Traditionally, labor unions in America — in both the public and private sectors — have been the “exclusive representatives” of the “bargaining units” that elected them. Essentially, union contracts cover every single worker in the “unit,” whether the worker wants anything to do with the union or not. This in turn leads to a dilemma: If workers don’t have to join or otherwise support the union, non-members essentially free-ride off the union’s efforts. If they do, they’re being coerced into offering financial support for an inherently political organization as a condition of employment — which is especially troubling when the employer is the government.

Currently, the dilemma is resolved state by state, with fights over “right to work” laws and “fair share” payments. The plaintiffs in Janus want to end the fight entirely as far as the public sector is concerned. They want the Supreme Court to say that it violates the First Amendment for a government labor contract to require workers to give money to a private organization.

They are correct.

Such a decision would overrule the 40-year-old Abood v. Detroit Board of Education. Back then, the Court ruled that government workers could be required to pay their share of the costs of their unions’ core activities, such as handling contract negotiations and grievances. They could not, however, be required to support unions’ political actions. Thus workers who object to their unions’ political activities can pay “agency fees,” which are significantly less than full union dues.

Unsurprisingly, that has proven a difficult distinction to preserve. A brief in the current case from the libertarian Competitive Enterprise Institute, for instance, notes that unions are allowed to use agency fees to fund their national conventions, which are hotbeds of openly partisan activism.

Even when agency fees support basic overhead costs, they can help to subsidize political operations; many unions advocate nonstop throughout the year for numerous causes, many of which have nothing to do with labor law. And perhaps most fundamentally, as the conservative Pacific Legal Foundation points out in another brief, even unions’ most core function — negotiating compensation and working conditions — entails, in the case of government employees, taking a stance on a matter of public policy with serious ramifications for state and local budgets.

Supporting this kind of organization is a political act, period, and it is highly problematic for such support to be a condition of public employment.

Supporting this kind of organization is a political act, period, and it is highly problematic for such support to be a condition of public employment.

There’s relatively little doubt about what the Court will do. In 2014’s Harris v. Quinn, the Court refused to extend Abood to a new group of workers (home health-care aides who are hired by individual patients with subsidies from state Medicaid programs) and criticized the original ruling. Last year, in Friedrichs v. California Teachers Association — a case virtually identical to Janus — the Court came to a 4–4 stalemate, robbed of its deciding vote by Antonin Scalia’s death. Scalia had been widely expected to support overturning Abood, and his replacement, Neil Gorsuch, generally has a similar judicial philosophy.

One can hardly overstate the ramifications of going this route. In recent decades, private-sector unionization has fallen to 6 percent, in part owing to the success of right-to-work laws. In the public sector, by contrast, more than a third of workers still belong to a union. The latter number will drop precipitously if public-sector workers nationwide are allowed to opt out of dues and fees.

That would be a laudable result even apart from the constitutional concerns with the status quo. Regardless of what one thinks of unions in the private sector, it’s undeniable that organized labor is a problem for state and local governments. Private-sector labor bargaining is naturally adversarial; unions want higher pay, employers want to pay less. But in the public sector, unions donate huge sums to supportive politicians and then “negotiate” with employers run by those very politicians as taxpayers foot the bill. The entire system is a farce and has led to inflated compensation packages and budget crises.

It is also worth noting that in a world without Abood, it wouldn’t have to be the case that unions would be forced to represent free-riders who don’t pay dues. As James Sherk of the Heritage Foundation often notes, it is perfectly legal under federal law — if seldom actually seen in practice — for a union to be “members only.” In this case the union collects dues only from members who join voluntarily, and crucially also represents only members. Those who don’t join the union have to negotiate their own contracts and address their own grievances and so on.

If Abood falls, all 50 states should make sure their laws on public-sector unionization don’t interfere with this model. Though unions have tended to avoid it because of the loss of power and control it entails, even some on the left have grown to see its advantages in a world where traditional unionization is on the decline. People shouldn’t have to pay unions if they don’t want to, but unions shouldn’t have to represent people who don’t pay, either.

That’s the only fair and non-coercive system for private and public employers alike. And when it comes to public employers, the Left’s preferred alternative — unions represent everyone, everyone has to pay the union — is a clear violation of the First Amendment. Public employment must never be conditioned on support for a political organization.


No Government Worker Should Be Forced to Pay Union Dues

Labor Unions: Workers’ Unelected Representatives

Appeals Court Upholds Right-to-Work Laws in Kentucky and Ohio


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