In a matter of months, the U.S. Supreme Court will decide one of the most significant labor cases in decades, Janus v. AFSCME Council 31, and determine whether states can force public employees to financially support a government union against their will.
While 28 states have already passed “right-to-work laws” protecting workers’ ability to make their own choices about union membership, millions of public employees in the remaining 22 states can be fired for refusing to pay dues or “agency fees” to a union.
Plaintiff Mark Janus, a child-support specialist for the state of Illinois, is one of those unfortunate workers forced to financially support a politically active private organization as a condition of keeping his government job. Since he disagrees with many of the views held by his union, Janus contends that being required to support AFSCME Council 31, the union representing him and his coworkers, amounts to compelled speech in violation of the First Amendment.
Although the idea of compelling people to participate in and support private entities they find objectionable is downright un-American, unions have justified the practice in part on the grounds that such requirements are necessary to promote “labor peace,” an argument the Supreme Court adopted in its misguided 1977 decision in Abood v. Detroit Board of Education. Since “labor peace” is an “important government [interest],” the court reasoned, the “impingement upon associational freedom” resulting from forcing public employees to pay agency fees is justified.
Reading between the lines, unions basically contend that they will disrupt public services and government operations unless granted the ability to extract agency fees from unwilling public employees.
Admittedly, both government and taxpayers have an interest in an engaged and peaceful government work force. Whether heading to the local DMV or calling 911, the last thing most taxpayers want to hear is that the public servants they fund and upon whom they rely are walking a picket line.
Fundamentally, though, the question of whether forcing public employees to pay agency fees to a union promotes labor peace is empirical, not legal. Union bluster aside, if agency-fee requirements do not promote labor peace in practice, then the infringement of public employees’ rights perpetrated by agency fees is much harder to justify legally. Fundamentally, though, the question of whether forcing public employees to pay agency fees to a union promotes labor peace is empirical, not legal.
As it turns out, this is precisely the case.
New research by the Freedom Foundation examines several decades of data contained in two federal databases of strikes and work stoppages, finding that public employees in right-to-work states go on strike at a far lower rate than their counterparts in agency-fee states. One database maintained by the Bureau of Labor Statistics recorded only a single strike by public employees in a right-to-work state over the 24 years covered.
Analysis of another, larger database maintained by the Federal Mediation and Conciliation Service indicated that, over a period of 33 years, public-sector workers in agency-fee states went on strike at a rate 17 times that of their counterparts in right-to-work states.
Additionally, the Freedom Foundation report examined survey data about public-employee engagement at work collected by Gallup over an eight-year period, finding that government workers in right-to-work states were significantly more likely to be engaged and “work with passion” than public employees in agency-fee states, who were more likely to be “busy acting out their unhappiness.” For instance, the median ratio of engaged to actively disengaged employees was a whopping 40.5 percent higher in right-to-work states than in agency-fee states.
The report’s findings were recently submitted to the U.S. Supreme Court in an amicus brief filed by the foundation and two Washington state economists on Mark’s behalf.
With Janus threatening to finally end the four-decade injustice of compulsory unionism for public employees, government unions can be expected to fall back on the same hypothetical justifications for agency fees they have deployed from the beginning.
Hopefully, this time the Supreme Court has the evidence necessary to see through these tired defenses and hollow threats and come down on the side of American workers and constitutional freedoms.