NILRR: 12 THINGS YOU NEED TO KNOW ABOUT GOVERNMENT UNIONS

From The Federalist

Much of this article relates to things as it was in 2014. However, in a major victory for First Amendment rights, the U.S. Supreme Court ruled in Janus v. AFSCME that non-union government workers cannot be required to pay union fees as a condition of working in public service. This landmark case restores the First Amendment rights of free speech and freedom of association to more than 5 million public school teachers, first responders and other government workers across the country.

1. Even pro-union politicians used to think public sector unionism was too radical.

Long after the pro-union monopoly National Labor Relations Act (NLRA) was adopted in 1935, even strong supporters of this statute rejected the appropriateness of attempting anything analogous in federal, state, or local government. …

2. Politicians later empowered private groups to tax government employees.

In the late 1950s and early 1960s, politicians like Robert F. Wagner Jr (New York City mayor and son of the Senate sponsor of the NLRA), Gaylord Nelson (Wisconsin governor), and finally President John F. Kennedy opted to bring monopoly unionism to the public sector. …

3. Government union bosses’ forced dues powers largely based on a false premise.

It was in 1977’s Abood v. Detroit Board of Ed that the high court originally sanctioned the “undeniably unusual†privilege for government union officials to force public employees, including nonmembers, into paying union dues and fees in jurisdictions where union officials are legally empowered to represent all front-line employees in a workplace. … [Public sector forced dues have been ruled unconstitutional by the U.S. Supreme Court in the Janus v. AFSCME National Right to Work Foundation victory.]

4. Federal courts have long admitted forced dues for government employees is constitutionally problematic.

Federal courts have repeatedly admitted that, to a greater extent even than government-authorized forced union dues in the private sector, compulsory union dues or fee payments to government unions (often euphemistically referred to as the “agency shopâ€) are constitutionally problematic. [Public sector forced dues have been ruled unconstitutional by the U.S. Supreme Court in the Janus v. AFSCME National Right to Work Foundation victory.] …

5. In recent developments, mothers took on a governor and politically-connected union.

In early fall 2009, Pam Harris, a resident of suburban Chicago and mother of a young adult son with severe developmental disabilities, received a form letter from agents of Illinois Gov. Pat Quinn informing her that, as a care provider for her son in Illinois’ Disabilities Program, she now could cast a mail-ballot vote regarding which of two unions would be installed as her monopoly-bargaining agent in her dealings with the state. …

6. Harris and other providers blocked an expanded shakedown.

Over the course of the rigged unionization “election†in late 2009, Harris and other parents pooled their money to print and distribute a flyer countering the Quinn team’s propaganda. The independent-minded providers’ shoestring effort succeeded. Providers ultimately voted two-to-one for “no union.†Nevertheless, Service Employees International Union (SEIU) and American Federation of State, County, and Municipal Employees (AFSCME) union officers continued to press ahead with their efforts to gain monopoly-bargaining privileges over the caregivers in the program…

7. The Court’s Abood majority acknowledged that forced union dues violate workers’ freedom to associate.

Concerns about the potential inequities resulting from “exclusive†union representation are one plausible reason for abolishing it in public-sector workplaces. But they are no justification for forcing nonmembers to financially support a monopolistic union. And the oral arguments in Harris v. Quinn, the first direct challenge to the constitutionality of government-sector forced union dues since Abood, highlighted one key reason why not.

The Abood majority opinion conceded up front:

To be required to help finance the union as collective-bargaining agent might well be thought . . . to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.

Abood majority opinion

8. Union lawyers admit public workers may be forced to pay a union to ‘make an argument’ with which they disagree.

During the Harris oral arguments this January 21, SEIU lawyer Paul Smith (who also represented Quinn) could not help but tacitly acknowledge, first of all, that significant numbers of nonmembers are made economically worse off by “exclusive†union representation. [Public sector forced dues have been ruled unconstitutional by the U.S. Supreme Court in the Janus v. AFSCME National Right to Work Foundation victory.]

ALITO: So that employee who’s not a member of the union has to pay for the union to bargain with the–the State to achieve something that’s contrary to that person’s interest. But you say that person is a free rider.

Smith’s response: “Yes, your Honor. …â€

Harris oral arguments

9. A Court majority struck down the scheme, but left government union bosses’ forced dues powers intact.

In his 39-page opinion of the Court, Alito basically concurred with the plaintiffs that Abood should be overruled. But rather than actually overrule it, Alito and the four other justices who joined in his opinion merely refused to allow it “to be extended to those who are not full-fledged public employees . …†[Public sector forced dues have been ruled unconstitutional by the U.S. Supreme Court in the Janus v. AFSCME National Right to Work Foundation victory.] …

10. The Harris dissent matters, too.

Judging by the strenuous effort to shore up Abood in Justice Elena Kagan’s Harris v. Quinn minority opinion, she and her fellow dissenters do not believe it is too late to save the precedent that has protected forced union dues in the government workplace for nearly 40 years.

[Public sector forced dues have been ruled unconstitutional by the U.S. Supreme Court in the Janus v. AFSCME National Right to Work Foundation victory.] …

11. The dissent runs contrary to years of federal court precedent.

What Kagan and the other dissenters apparently forgot is that federal courts have already repeatedly ruled that the government as employer does not have wide “constitutional latitude†to limit the First Amendment freedom of public employees to join a labor union. Forty-five years ago this February, a federal court overturned North Carolina’s statutory provisions restricting municipal employees’ right to join aid and assist labor organizations, finding them to be “an abridgment of the freedom of association protected by the First and Fourteenth Amendments of the U.S. Constitution. …

11. The dissent runs contrary to years of federal court precedent.

What Kagan and the other dissenters apparently forgot is that federal courts have already repeatedly ruled that the government as employer does not have wide “constitutional latitude†to limit the First Amendment freedom of public employees to join a labor union. Forty-five years ago this February, a federal court overturned North Carolina’s statutory provisions restricting municipal employees’ right to join aid and assist labor organizations, finding them to be “an abridgment of the freedom of association protected by the First and Fourteenth Amendments of the U.S. Constitution. [Public sector forced dues have been ruled unconstitutional by the U.S. Supreme Court in the Janus v. AFSCME National Right to Work Foundation victory.] …