Government Unions in the Crosshairs

Two suits seek to overturn 40-year-old precedent allowing for forced union dues, exclusive representation for government employees

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The Supreme Court could revisit a 40-year-old precedent that allows government agencies to force public sector workers to pay union dues, an issue the court deadlocked on in 2016 following the sudden death of Antonin Scalia.

The National Right to Work Foundation will file two petitions on Tuesday with the high court challenging coercive dues schemes for government employees (Janus v. AFSCME), as well as monopoly bargaining rights for home health aides that receive Medicaid dollars (Hill v. SEIU). The suits seek to overturn Abood v. Detroit Board of Education, a 1977 case that enabled government agencies to require the payment of union dues or fees as conditions of employment.

Bill Messenger, the National Right to Work Legal Defense Foundation's lead attorney in both cases, told the Washington Free Beacon in an exclusive interview that the plaintiffs are petitioning the court to consolidate both cases, but, if given the chance, will ask to first consider Janus v. AFSCME before moving to Hill v. SEIU. Messenger said the plaintiffs are asking the court to resolve the question of "how far can you extend monopoly bargaining rights."

"It's the state's burden to justify infringing on a worker's association rights," he said. "The key is there's no difference between collectively bargaining with the government and lobbying the government. If you can't force people to pay to lobby the government, then you can’t force them to pay union dues or exclusively bargain with them."

This is not the first time that public sector workers have attempted to overturn Abood. In 2014, the Supreme Court struck down an agreement initiated by imprisoned Democratic Illinois Gov. Rod Blagojevich that forced home healthcare providers that receive Medicaid reimbursements to pay union dues. The court ruled in Harris v. Quinn that those workers could not be considered actual government employees because the workers' primary employers were patients, rather than the state government. The decision led many states to end similar practices, but stopped short of overturning Abood.

Public sector workers who objected to union representation felt that the decision authored by Justice Samuel Alito opened up the possibility of ending forced union participation for all public workers. In 2014, California public school teacher Rebecca Friedrichs initiated a suit against the California Teachers Association arguing that she was forced to fund her union's political positions. Friedrichs, a former union official, argued that government unions were inherently political because they negotiate over the disbursement of taxpayer dollars and other budget questions.

The Friedrichs case reached the Supreme Court in January 2016, and several justices appeared sympathetic toward the teacher's legal challenge during oral arguments.

"The union basically is making these teachers compelled riders for issues on which they strongly disagree," Justice Anthony Kennedy said. "Agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points."

However, the case failed to definitively resolve the constitutionality of forced dues for government workers. Justice Scalia died suddenly in February 2016. The court issued a 4-4 deadlock, which handed a victory to government unions because lower courts affirmed the Abood precedent. The High Court then rejected a bid from Friedrichs and her attorneys to rehear the case when a ninth judge was confirmed to the court.

Messenger said that Janus largely follows the precedent set by Harris v. Quinn and will build off of the Friedrichs argument regarding dues payments as forced political speech. Hill v. SEIU addresses the issue beyond the monetary concerns of workers; it challenges whether the government has the right to declare an organization an "exclusive representative" without a compelling interest. The case was brought by several home healthcare workers in Illinois, many of whom were freed from the burden of paying union dues by the Supreme Court in 2014. While they now avoid automatic deductions by SEIU, the union continues to be treated as the "exclusive representative" of all home health aides in the state.

Messenger compares the situation to a hypothetical bill in which Texas passed legislation saying that it would treat the National Rifle Association as the face of all gun-owners in the state or if the federal government forced all doctors to associate with the American Medical Association for the purpose of lobbying. Such an arrangement would grant "special powers for lobbying the state" to a government-favored organization at the expense of other individuals.

"The providers in Hill are private citizens. If you can force a mandatory representation policy on them then you can force mandatory representation on anybody," he said. "The reality is you're forcing people to support an advocacy group and our system prohibits the government from dictating who speaks for its citizens."

Neither of the unions involved in the cases, American Federation of State, County & Municipal Employees Local 31, nor the Service Employees International Union, Healthcare Illinois, Indiana, Missouri, Kansas, returned a request for comment.

The petitions can be found here.

Bill McMorris   Email Bill | Full Bio | RSS
Bill McMorris is a staff writer for the Washington Free Beacon. He joins the Beacon from the Franklin Center for Government and Public Integrity, where he was managing editor of Old Dominion Watchdog. He was a 2010 Robert Novak Fellow with the Phillips Foundation, where he studied state pension shortfalls. His work has been featured on CNN, Fox News, The Economist, Colbert Report, and numerous print publications and radio stations. He lives in Alexandria, Va, with his wife and three daughters. His Twitter handle is @FBillMcMorris. His email address is mcmorris@freebeacon.com.

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