Labor’s Last Stand

AFSCME issues brief defending mandatory dues payments to the Supreme Court

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One of the nation's largest public sector unions defended mandatory unionism in a brief filed to the Supreme Court Friday.

American Federation of State, County, and Municipal Employees (AFSCME) Council 31 is fighting to maintain a government agency's right to mandate union dues or fee payments as a condition of employment. Several AFSCME members in Illinois have petitioned the Supreme Court to reverse court precedent set in Abood v. Detroit Board of Education (1977) on the grounds that they are being forced to subsidize political advocacy. Twenty-two states mandate those fee payments, while 26 prohibit such fees.

AFSCME said such payments are needed to prevent a free rider problem in which workers benefit from union organizing efforts and advantageous contracts, while refusing to pay for those services. Since union contract terms, including salaries and grievance procedures, extend to all workers in a bargaining unit, rather than just union members, it is only fair for workers to pay for union services. The union argues that disrupting the practice could threaten labor peace in the workforce.

"Though such fees implicate the First Amendment, the Court explained, collection of them is justified by States’ strong interest in promoting labor peace through collective bargaining and avoiding the ‘free rider' incentive that arises when non-member employees can avoid paying any fees while retaining the benefits of representation by an informed and expert agent," the brief says.

The union dismissed as "false" the plaintiff's argument that public sector labor organizations are inherently political because they make claims to taxpayer dollars and affect budgetary matters. It sought to draw a line between collective bargaining and lobbying by contrasting a government agency's approach to employees, rather than public citizens. The government is free to designate any group a representative of employees, while it is not free to suppress political speech from private citizens. AFSCME also argues that declaring government personnel decisions and policies "inherently political" would give the judicial branch extreme scrutiny over government operations, infringing on the rights of local lawmakers and legislators who have codified collective bargaining into state law.

"The government has the right to choose to whom it listens in a private forum," the brief says. "Paying salaries is a reality of the government acting as an employer. At bottom, it cannot be that all topics with fiscal effects necessarily raise matters ‘of legitimate public concern.'"

Illinois Democratic Attorney General Lisa Madigan also defended the practice of mandatory dues payments as a reasonable condition for workers to meet. She argued in her brief that no part of collective bargaining prevents an employee from exercising their speech rights as a private citizen.

"Agency fees…do not restrict any employee’s right to speak in any public forum on any subject and are justified by the State’s interest as an employer in effectively managing its workforce," the state's brief says.

Mark Mix, president of the National Right to Work Legal Defense Foundation, which represents the workers along with the Liberty Justice Center, said the brief failed to justify continued forced dues payments. Mix said it is time for the Court to end the "anomaly" of forced dues payments, alluding to the court's 2012 ruling in Knox v. SEIU, which found the SEIU improperly charged a non-member for political activities.

"Nothing in the briefs filed by AFSCME and the Illinois State Attorney General adequately explain why union officials’ demands for forced dues should trump the fundamental Constitutional rights of public employees," Mix said. "In the Knox case, the Supreme Court called forced union fees an anomaly in First Amendment jurisprudence, and at the oral argument next month the Justices will simply be asked to fully protect [plaintiff] Mark Janus’ rights by ending that anomaly."

Public sector unions have much at stake in the Janus case. One study found that government unions in New York could expect to lose $110 million in dues and fee collections if the Court overturns Abood, a 13 percent drop. Similar reforms in traditional labor strongholds such as Wisconsin and Michigan have seen steep drops in union membership rates, as workers opt out paying dues. Many public sector unions have undertaken belt-tightening measures in anticipation of Republican reforms. SEIU announced a 30 percent budget cut following the 2016 election.

This is the second major challenge to Abood in recent years after California teacher Rebecca Friedrichs sued to sever her ties to the union because her agency fees infringed on her First Amendment rights. The Supreme Court deadlocked on the case following the death of Justice Antonin Scalia.

Oral arguments in Janus will take place on Feb. 26.

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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