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.”
It was never practical to draw a line between which of public unions’ activities could and could not be funded with compelled fees.
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.