Justice Samuel Alito’s majority decision in Janus v. AFSCME was a grand slam for workers’ freedom. Not only did the Supreme Court overrule 40 years of bad precedent upholding compulsory union fees (overruling Detroit Board of Education v. Abood), it also ended opt-out schemes—a practice unions have used for generations to abuse workers’ rights.
Opt-out schemes allow employers to automatically deduct union fees from workers’ wages without their permission. Prior to Janus, workers had to affirmatively object before their employers (hopefully) ceased the deductions. The union fees deducted without worker authorization included agency fees spent on collective bargaining and so-called “nonchargeable expenses” that could not be constitutionally compelled even before Janus. “Nonchargeable expenses” included union expenditures on the overt advocacy of candidates and ballot measures, and had nothing to do with collective bargaining.
This means that through opt-out schemes unions took money from people without authorization and spent it on all sorts of political activity. No other group in the country possessed this privilege. Only Big Labor.
But no more.
Employers must now obtain clear, prior and affirmative consent from public employees before they deduct money from them and forward it to a labor union. You know…they have to do what every other organization must do before it takes money from people – ask permission.
Oh, the horror.
The Freedom Foundation submitted an amicus brief in Janus v. AFSCME on behalf of itself, Rebecca Friedrichs – the plaintiff in the 2016 case Friedrichs v. California Teachers Association – and Miranda Thorpe, a Washington homecare provider. Dozens of other teachers and homecare providers also joined the brief. The Freedom Foundation urged the Supreme Court to overrule Abood and “craft its holding to require public employees’ affirmative consent before government employers and unions may seize union dues from their wages.”
The Supreme Court did exactly that, even using the same language used by the Freedom Foundation’s brief. The court held:
“Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by ‘clear and compelling’ evidence. Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”
(Emphasis added to highlight similarities below.) The court also observed what the rest of us have known for years; namely, that “Abood was poorly reasoned” and “led to practical problems and abuse.”
The “practical problems and abuse” cited by the court were laid out in detail in the Freedom Foundation’s brief. The brief cited example after example of how unions have exploited opt-out schemes to “abuse, smear and discriminate against teachers who dissent from union political orthodoxy.”
Friedrichs and her colleagues described how their unions impose complicated opt-out procedures and require objecting teachers to repeat the process every year or they will be opted back into dues payments. They also described union bullying and intimidation.
Miranda Thorpe and her fellow homecare providers shared their experiences with SEIU Local 775, an especially aggressive, money-hungry and politically powerful union that automatically opted every nonunion homecare provider into union membership and dues payments after the Supreme Court in 2014 issued Harris v. Quinn, which prohibited agency fees assessed to homecare providers but left opt-out schemes intact.
After Harris, SEIU 775, along with Washington’s governor – to whose election campaign the union had been a very generous contributor – made sure SEIU 775’s coffers stayed full. They agreed to a collective bargaining agreement under which only SEIU 775 could “notify” providers of their newly recognized right and that only SEIU 775 could determine who would and who would not pay union dues.
The state would turn a deaf ear to any provider who objected to union membership and dues payments unless SEIU 775 permitted the state to cease deducting union dues — a perfect example of the tail wagging the dog. As a result, very few providers learned of their rights and SEIU 775 continued raking in millions of dollars.
The Freedom Foundation’s brief also outlined how SEIU 775 engaged in abusive litigation tactics against the Foundation’s effort to inform providers of their rights and how pro-union politicians in Washington, Oregon and California exempt provider names from disclosure under state public records acts, making it nearly impossible for groups like the Freedom Foundation to notify them of their rights.
The brief argued that “(t)he abusive tactics unions used after Harris to undermine and avoid its effect are the same tactics they will use after this decision. This court should vacate Abood, but if it declines to address the issue of prior, affirmative consent, millions of public employees across the nation will join the ranks of their Harris-affected brethren – entitled to a robust First Amendment protection they know nothing about.”
The Freedom Foundation concluded that, “(O)verruling Abood without addressing the need for workers’ prior, affirmative consent would subject all public employees to the same abusive tactics. The First Amendment permits dues seizures only after workers affirmatively consent to the payment of union dues.”
Finally, the brief argued that, “(i)f compulsory union fees substantially impinge workers’ First Amendment rights, then government employers and unions may not constitutionally presume workers’ acquiescence in the loss of those rights.”
Does the highlighted language look familiar? It should. It is the same language the Supreme Court used in Janus to prohibit opt-out schemes.
No doubt unions and the politicians they buy will continue to thwart public employees’ newly recognized First Amendment right to not financially support a labor union. But for the first time in over almost half a century, they will not have bad law on their side.