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High Court Hears Forced Unionism Case

Janus v. AFSCME could reverse 40-year-old rule allowing mandatory union payments

Plaintiff Mark Janus / Getty Images
• February 27, 2018 5:00 am

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Public sector workers seeking to break ties with organized labor appeared before the Supreme Court on Monday seeking to overturn a 40-year-old rule mandating union fees.

Lawyers representing Illinois state worker Mark Janus and the Trump administration argued that public sector unionism forces employees to subsidize political speech before the Supreme Court. The plaintiffs in Janus v. American Federation of State, County, and Municipal Employees are asking the Court to overturn its 1977 Abood decision, which allowed government agencies to mandate union membership or fee payments as a condition of employment. Janus attorney Bill Messenger of the National Right to Work Legal Defense Foundation argued that public sector union activities are inherently political because they make claims on public policy and taxpayer dollars.

"Collective bargaining is the core political activity, which we submit individuals cannot be compelled to support," Messenger said.

The case received the backing of the Trump administration in December. Solicitor General Noel Francisco said forced union participation differs from constitutional restrictions that the federal government places on employee speech, such as the Hatch Act, which prohibits workers from politicking on taxpayer time.

"The government is allowed to prohibit core political speech when it interferes with the employee's ability to do their job," Francisco said. "There's no corresponding interest when it comes to compelling employees to subsidize third-party advocacy."

AFSCME Local 31 attorney David Frederick challenged the notion that public sector unions are inherently political. He said preserving the Abood precedent would help workplace cohesiveness and ensure labor peace by avoiding the issue of "free riders." American labor law forces unions to extend contract terms and protections, such as grievances, to all workers in a collective bargaining unit, not just its members. While he conceded that some elements of bargaining are of "public concern, the government has the adequate power to restrict that speech if it can show there's justification." Fee payments are justified because they ensure all workers contribute to the negotiations and prevent discord and unrest in the public sector.

"The fees are the tradeoff. Union security is the tradeoff for no strikes. And so if you were to overrule Abood, you can raise an untold specter of labor unrest throughout the country," he said.

Messenger dismissed the union argument that mandatory union payments from workers with no interest in union membership are necessary to preserve labor peace. He said such a system amounted to "protection money."

"The idea that the government needs to force its employees to subsidize unions or otherwise the unions will disrupt the government,… I submit that's not an interest that this Court can accept as a compelling one for infringing on individuals' First Amendment rights," Messenger said.

Some labor watchdogs were optimistic about opening arguments. Freedom Partners chairman Mark Holden said the case could expand political freedom for millions of workers at the state and local level who have been forced to direct portions of their salaries to labor organizations. He said compelling the support of speech is just as much a violation of the First Amendment as censorship.

"The Court has an opportunity to empower millions of public employees across the country to decide for themselves whether they want to fund their union's political agenda," Holden said in a statement. "Forcing people to finance views and opinions they may disagree with is as much a violation of the First Amendment as silencing them."

The case will be decided before the end of the Court's session in June.

Published under: Big Labor, Supreme Court, Unions