For the second time in two years, the U.S. Supreme Court today heard oral arguments in a case challenging the constitutionality of state laws requiring public employees to financially support a union as a condition of employment.
Brought by plaintiff Mark Janus, an Illinois state employee, Janus v. AFSCME presents the court with an opportunity to correct a mistake made more than 40 years ago in Abood v. Detroit Board of Education (1977), which upheld the constitutionality of laws requiring public employees to pay “agency fees” to a union.
How We Got Here
Since Abood, the Supreme Court has gradually walked back its holding. In Davenport v. Washington Education Association (2007), a case brought by the Freedom Foundation on behalf of a group of Washington teachers upset about the union’s use of their dues and fees for political activity without their consent, the court affirmed that, “…unions have no constitutional entitlement to the fees of nonmember-employees.”
Several years later, in Knox v. Service Employees International Union (2012), the court began to acknowledge its earlier mistake, noting that, “… by allowing unions to collect any fees from nonmembers… our cases have substantially impinged upon the First Amendment rights of nonmembers.”
The court came close to overturning Abood outright in Harris v. Quinn (2014), ruling instead that “partial-public employees” could not be forced to financially support a union against their will. However, in its decision, the court acknowledged it is a “bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
Most recently, when Friedrichs v. California Teachers Association reached the court in 2016, most observers expected the justices to strike down agency fee requirements for public employees once and for all. However, the court was left tied 4-4 when Justice Antonin Scalia unexpectedly died just weeks after hearing the case.
Barring another sudden turn of events, a fully staffed court will decide Janus v. AFSCME by the end of June.
Who Would Be Affected
Twenty-eight states have already passed right-to-work laws protecting the ability of employees to choose for themselves whether to join and financially support a union. It’s estimated that about 5 million unionized public employees in the remaining 22 non-right-to-work states, including Washington and Oregon, will be affected by Janus.
According to UnionStats.com, which blends data from the Bureau of Labor Statistics and the Census Bureau, there are approximately 290,000 union-represented public employees in Washington state and 145,000 union-represented public employees in Oregon.
The Freedom Foundation’s Role
Freedom Foundation attorneys filed two amicus briefs supporting plaintiff Mark Janus. The first amicus brief filed on behalf of former plaintiff and California public school teacher Rebecca Friedrichs explains how unions in some contexts seize dues from employees without permission, forcing them to opt out of the deductions. Consequently, the brief asks the court to find that, “The First Amendment permits dues seizures only after workers affirmatively consent to the payment of union dues.
The Freedom Foundation’s second amicus brief refutes the union argument that agency fees are necessary to promote “labor peace” among public employees, an important government interest. An analysis of data from two federal databases of strikes and work stoppages finds that states requiring public employees to pay agency fees to government unions experience greater labor unrest than right-to-work states in which agency fee requirements are banned.
Anti-Janus Bill in Olympia
Anticipating a loss in Janus, unions and their allies in Olympia are supporting a package of bills in the Washington Legislature designed to aide them in continuing to collect dues from as many public employees as possible.
Senate Bill 6229, introduced by Sen. Kevin Van De Wege (D-Sequim), a union fire fighter, allows union organizers to pressure newly hired public employees to sign restrictive union membership forms in captive audience meetings. SB 6229 passed the Senate and awaits a vote in the House.
House Bill 2751 would require the government to automatically seize full union dues from employees’ pay unless and until the employee demands in writing the deductions stop. Introduced by Rep. Monica Stonier (D-Vancouver), a teachers’ union activist, HB 2751 passed the Democrat-controlled House along party lines and awaits a vote in the Senate.
Lastly, to prevent the Freedom Foundation from communicating with public employees about their constitutional rights, SB 6079 would weaken the state Public Records Act by preventing government entities from releasing certain information about public employees. SB 6079 was passed by the Democrat-controlled Senate in a party line vote and awaits action in the House.
Freedom Foundation Quotes
“It is unconscionable that, in the 21st century, laws around the country compel millions of people to subsidize the views and agendas of unions they oppose as a condition of pursuing their chosen vocation. This is one of the great civil rights travesties of our time. Thankfully, the Supreme Court has an opportunity in Janus to vindicate the First Amendment rights of public employees once and for all. Today’s arguments were animated and, at times, contentious. The plaintiff’s position was well-argued and represented, and we’re cautiously optimistic the court will side with workers’ rights. As many court-watchers expected, the deciding vote seems likely to come down Justice Gorsuch, who offered no insights into his thinking during oral argument.”
- David Dewhirst, chief litigation counsel, Freedom Foundation
“People don’t realize that unions are businesses, too. Allowing unions to act like monopolies and force public employees to pay dues whether they want to or not results in unaccountable, out-of-touch union leadership more interested in pursuing their own political agendas than representing their members. Hopefully the Supreme Court finally recognizes that public employees deserve to be able to make their own choices about union membership.”
- Maxford Nelsen, director of labor policy, Freedom Foundation
Public Employee Quotes
“No public employee should be required to provide dues money to a union or any entity as a requirement of employment. Unions could be valuable if they had to reach out to the members they claim to represent. Instead, teachers’ associations have become a monthly money pot primarily to influence politics while paying union leadership very well. I have been a participant in direct action, been actively involved in my local unions, and even served as president of my local union for a time. Nevertheless, I believe union involvement should be voluntary.”
- Jim Johnson, retired public school teacher of 37 years.
“I’m not opposed to unions. I’m opposed to forced unionism. To me, being required to join a union as a condition of employment amounts to slavery, pure and simple.”
- Grant Pelesky, retired public school teacher of 40 years.
“Having been a public school teacher in Washington state for over 30 years, I have plenty of personal experience with the corrosive and corrupting influence of the union monopoly. It’s detrimental to our republic, destructive of public employees’ constitutional rights and anathema to the proper functioning of our legislative processes. An illuminating fact is that federal employees are not forced to choose between joining a union monopoly or losing their jobs. It’s time to recognize our nation’s teachers and state workers are worthy of the same rights and choices.”
- Bruce Gallagher, retired public school teacher of over 30 years.
“In Washington, state employees are required to blindly shovel tens of millions of dollars to opaque unions. To make matters worse, state workers were forced into unions without a legitimate, supervised election. The only choice for public employees who object is to leave state employment as I did. Hopefully the Supreme Court rules in Mark Janus’ favor and gives public employees a better alternative.”
- Mike Farley, retired Washington state employee.
David Dewhirst, chief litigation counsel. David attended the oral arguments in Washington, D.C., and is available for comment.
Maxford Nelsen, director of labor policy.