The latest legislative attack against unions is underway, and the stakes are high, particularly for public sector unions.
In the most recent manifestation of Right-to-Work (RTW), Janus v. AFSCME, the Supreme Court will decide whether to strike down or uphold the decision in Abood v. Detroit Board of Education, a 1977 Supreme Court case that mandated all public sector employees, regardless of their union membership, cover the costs incurred by the union for its work in collective bargaining and worker representation.
In both the public and private sector, union contracts cover all employees in which the union is in place, whether employees join the union or not. But this creates a problem. On the one hand, if employees are not required to join or financially support the union, they get something for nothing, or, free-ride off the union’s hard work. That is, when it comes to such employees, unions are not compensated for their collective bargaining efforts or employee representation. On the other hand, if employees are required to join the union, as a condition of employment, they’re being forced to financially support an organization that funds political causes, which in some cases, may run contrary to their own. These concerns are often expressed in terms of the free rider problem and free association/free speech, respectively.
The Abood decision is significant for the compromise it reached between these seemingly irreconcilable ideas. With regard to free association, the Court struck down the provision that tied employment to union dues; after Abood, public sector employees in non-Right-to-Work states could opt out of union membership (and its dues) without losing their jobs.
But the Court’s solution to the free-rider problem is the more clever of the two. By distinguishing union dues from agency fees, the Court introduced a legal distinction that set up an uneasy truce between union and anti-union forces - at least in the public sector - that has lasted 40 years.
To understand the distinction, recall that free-speech proponents complain that compulsory union membership violates freedom of speech, because it forces employees to support an organization’s political activities as a condition of employment. In its decision, the Court ruled that union dues could be used to fund a union’s political activities, and that agency fees would fund its work in worker representation and collective bargaining (or, to state it technically, “collective bargaining, contract administration, and grievance adjustment purposes”). All employees, regardless of union membership, benefitted from the union’s efforts to raise wages and settle grievances, so all employees were required to pitch in. However, if an employee disagreed with the union’s stance on political issues, she could decline both union membership and its membership dues.
For example, if a public school teacher objects to her union’s stance on school vouchers, or its financial support of an unsavory political candidate, she can leave her union, without either losing her job or foregoing the benefits earned by the union’s efforts, such as medical coverage or better wages. In such a case, the union would lose a member but retain her financial support of its collective bargaining work - that is, the union wouldn’t gain a free-rider in the teacher's departure.
It is this distinction, between a union’s political activities and its collective bargaining activities, that plaintiffs in both Janus and Friedrichs (the Supreme Court case nearly identical to Janus that ended in a 4-4 tie) seek to discredit. If they can demonstrate that the distinction is unnecessary or otherwise lacks merit, they will have won the day. They will have successfully argued that all union activity is political in nature. And, oddly enough, they will have successfully argued that they should not be compelled to subsidize any union activities, even those that increase their wages or guarantee their health insurance.
Janus and Friedrichs can be complex, particularly for those, who - like me - are unfamiliar with legal jargon and, who - again, like me - lack the stamina to sift through reams of arguments surrounding Right-to-Work. My aim has been to provide an overview of and offer clarity about the case. It is also to be the bearer of bad news. Janus will almost certainly succeed.
Barring a miracle in AFSCME’s favor, Trump-appointed Neil Gorsuch will side with conservative Justices, as would have Antonin Scalia - whom Gorsuch replaced - had it not been for Scalia’s unexpected death (I’m not implying we hope that the miracle take the form of another unexpected death). As a result, AFSCME and public sector unions are likely to see employees opt out of union membership. But people have been saying for years that such would befall public sector unions if RTW passed.
So, what to do? In the words of Mel Brooks, hope for the best, prepare for the worst.