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Justice Dept. Opposes Mandatory Union Dues for Public Employees, Reversing an Old Position

DOJ argues workers are being forced to subsidize political positions with which they may disagree.

AFSCMEJim West/ZUMA Press/NewscomThe Department of Justice is recommending that the Supreme Court rule that public sector employees cannot be forced to contribute dues to unions, even when they're not members.

The decision to submit an amicus brief supporting the employee in Janus v. American Federation of State, County, and Municipal Employees, Council 31 reverses the Justice Department's previous position under President Barack Obama.

Mark Janus, who works for the Illinois Department of Healthcare and Family Services, objects to having to pay dues to a union whose political positions he disagrees with and whose spending he questions in order to keep his job.

Public sector employee unions have historically been granted the authority to force payment of these dues under a 1977 Supreme Court decision, Abood v. Detroit Board of Education. The justification has historically been that even when public employees don't join the union, they are beneficiaries of the union's collective bargaining agreements. Requiring them to pay fees avoids the problem of "free riders."

But public employee unions are notoriously political and their bargaining agreements are inherently connected to public policies about government spending choices. In a commentary at the Chicago Tribune last year, Janus wrote that he didn't support the behavior of the union that "represents" him, blaming it for supporting candidates and fiscal policies that are essentially bankrupting Illinois.

The Justice Department's amicus brief, submitted yesterday, argues that public sector collective bargaining is inherently a political act, and therefore requiring people like Janus to pay dues is forcing them to subsidize political positions they may oppose:

In the public sector, speech in collective bargaining is necessarily speech about public issues. Virtually every matter at stake in a public-sector labor agreement affects the public fisc, and therefore is a matter of public policy concerning all citizens. Moreover, issues like tenure for state employees, merit pay, and the size of the state workforce are about more than money: they concern no less than the proper structure and operation of government. To compel a public employee to subsidize his union's bargaining position on these questions is to force him to support private political and ideological viewpoints with which he may strongly disagree.

The Janus case is essentially a redo of 2016's Friedrichs v. California Teachers Association, which presented similar arguments. The Supreme Court heard the case, but then Justice Antonin Scalia died and the court tied 4-4, leaving the status quo intact.

Damon Root identified Janus as one of the three major cases to watch at the Supreme Court's current term. It may not have the public outrage factor that has driven the coverage of the Masterpiece Bakeshop gay wedding cake case, but the policy implications and the impact on public sector unions here if the Abood precedent were overturned would be huge.

Photo Credit: Jim West/ZUMA Press/Newscom

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  • $park¥ leftist poser||

    If he doesn't want to support the union then he shouldn't have become a public employee.

  • Just Say'n||

    Works for cakes and jobs

    Sotomayor approves

  • Longtobefree||

    The justification has historically been that even when public employees don't join the union, they are beneficiaries of the union's collective bargaining agreements. Requiring them to pay fees avoids the problem of "free riders."

    Yeah, I mean, it's not like they could only apply the union contract to a union employee, and let the others make their own deal. It would take a computer to keep up with all that.

  • Tom Bombadil||

    Same justification for the obamacare mandate?

  • Mickey Rat||

    Unions are like squeegee men, they provide a service made without the consent of the individuals they serve and then demand thatvthey are iwedc for that service. It is a fu daenral failing of these types of collectivism that the members of it are not necessarily willing.

  • colorblindkid||

    This is common sense.

    We pay taxes.
    Those taxes are used to pay public employees.
    Those public employees are forced to give some of our tax dollars to their union.
    That union spends that money supporting politicians.
    Those politicians give the unions more money.
    More money paid to public employees means more money paid to the unions, and more money to the politicians.

    All with OUR tax dollars.

  • $park¥ leftist poser||

    So really we're all paying union dues.

  • colorblindkid||

    And those union dues go to mostly Democrat politicians.

    We are all making de facto donations to Democrat political campaigns.

  • Microaggressor||

    Consent matters. Every day I work for a paycheck I'm being wallet raped by the Democratic Party. And so are you. #MeToo

  • Crusty Juggler||

    And if you think about it, we're all paying for union doos, too.

    *awaits applause*

  • Citizen X - #6||

    Mandatory doo breaks from 10-10:45 and 1:30-2:15.

  • Tom Bombadil||

    A valid analysis except for one fatal flaw: In the Union of Socialist States of America, those were never OUR dollars.

  • JWatts||

    You didn't make that!

  • Ken Shultz||

    Didn't they rule in Citizens United that money is speech?

    How can the Court hold that unions giving money for the purpose of political advertising is speech protected by the First Amendment in Citizens United but that money received by the union from non-union members--for that exact same purpose--isn't speech at all?

  • JWatts||

    Principals versus principles.

    When the Principals are left leaning unions, obviously it's a different standard.

  • Juice||

    Didn't they rule in Citizens United that money is speech?

    Nope.

  • Ken Shultz||

    "The United States Supreme Court held (5–4) on January 21, 2010 that the free speech clause of the First Amendment to the Constitution prohibits the government from restricting independent expenditures for communications by nonprofit corporations, for-profit corporations, labor unions, and other associations.[2][3]"

    https://en.wikipedia.org/wiki/ Citizens_United_v._FEC

    If labor union contributions to advertising are afforded First Amendment protections because of free speech, then the contributions to labor unions by union members (and non-union members) should be protected by the First Amendment, too.

    Yes, the Court ruled that money--in this case--is speech, or, at least, that the government can't interfere with unions spending money on this without violating free speech protections in the First Amendment.

    If labor union contributions to political advertising are afforded First Amendment protections because of free speech, then the contributions to labor unions by non-union members should be protected by the First Amendment, too.

    Yes, the Court ruled that money--in this case--is speech, or, at least, that the government can't interfere without violating free speech protections in the First Amendment.

  • Ken Shultz||

    I may have pasted something there twice.

  • Zeb||

    the Constitution prohibits the government from restricting independent expenditures for communications

    The purpose of the expenditures is what is relevant to the 1st amendment case. It doesn't say any expenditures of any kind. Unlimited donations to candidates are still restricted.

    Communications cost money and communications are speech. That doesn't mean money is speech.

    Perhaps compelling people to give money to unions that is then used for lobbying can be considered forced speech. But that still doesn't make money speech.

  • Sevo||

    Maybe we shouldn't have the government deal with the unions at all.

  • Ken Shultz||

    There is an inherent conflict of interest in city council members negotiating union contracts with the unions whose donations and endorsements they depend on to get elected.

    I'm not sure we can do anything about endorsements, but if there is a limit to money/speech being given to candidates for advertising, it's probably the ability to negotiate contracts with the entities that gave you donations.

    If there were a law that forced politicians to recuse themselves from voting on contracts involving unions that gave them money, that might do the trick. It wouldn't stop the unions from giving money, and it wouldn't stop the city council members from taking the money.

    It's just that if you take their money, then you can't vote on their contract with the city.

  • ||

    It's pretty amazing how entrenched the idea of Collective Bargaining is, and how deep it's tentacles reach into law. I'd love to see this entire body of law repealed.

  • Microaggressor||

    What really bothers me is how the statement that workers benefit from union activities goes unchallenged. If the union electioneering results in bankrupting the city, did that benefit the worker? What if the worker isn't braindead and realizes his job is dependent on the proceeds of a healthy private sector? Why would it automatically be known that the worker benefits from growing the public sector?

    REASON: do your job and challenge these bullshit assertions.

  • Ken Shultz||

    "The justification has historically been that even when public employees don't join the union, they are beneficiaries of the union's collective bargaining agreements."

    There are a number of problems with that theory.

    For one thing, that may be true in some ways but not in every way. Some union agreements prioritize benefits for older members at the expense of younger members. If older members are entitled to benefits that younger members aren't, perhaps the dues aren't worth it to younger members.

    Do non-union members get union representation if they're wrongfully terminated? If union membership comes with some benefits that non-members don't enjoy, then non-members must not benefit from union contracts in the same way as union members. Why should non-members be compelled to pay the same rate for fewer or lesser benefits?

  • Fairbanks||

    Your example of older members getting more valuable benefits than younger members is true in spades for defined benefit pensions. If two workers aged 50 and 25 have accrued the same nominal payout (let's say they've both worked at the same job for five years) the value received by the older worker is more larger.

  • Rhywun||

    It may not have the public outrage factor

    Hm... gay cakes versus the looming bankruptcy of every state and city in the nation.

    Yeah, I can totally see that.

  • Mickey Rat||

    I can anticipate the whining about this from my relatives with pub sec union jobs.

  • Rhywun||

    Ask them if they're proud to leave the country a poorer place for their children and grandchildren.

  • Mickey Rat||

    Only if I want to see a nuclear meltdown up close.

  • BYODB||

    Yeah, you have correctly identified a major shortcoming with basically everyone. All most people care about are social issues. Everyone treats spending issues as if there is no downside to spending infinite amounts of money forever.

  • Crusty Juggler||

    Would if there was no disgusting tiny human.

  • Robert||

    I'm not sick of winning yet, long way to go for that, but on the way.

  • ||

    Most progressives/liberals do not care about this issue as much as things such as the gay wedding cake issue because it does not involve identity politics so they do not have a reflexive emotional reaction. However, this decision is much more important to the Democratic Party than maybe any case in recent history. Do the right thing, SCOTUS. We live in a free country. As such, you should be able to get a public job without paying money to a union if you do not want to.

  • whoosiebob||

    Union work

    Where you get 2 hours of work and 8 hours to get it done

    You'll get a set raise no matter who you piss off

    Where "Manual Labor" is thought to be an immigrant from Mexico

    You don't have to be the best to get promoted

    Where passing a drug test or graduating high school is cause for celebration

    Where being late is a growing fad

    Where obtaining a GED is considered a success story

    If it's break time.....it's flippin' break time

    Where you need to bend over to have the benefit package properly inserted

  • JoeB||

    If this fails with the current Justice Dept and SCOTUS, CA is doomed, followed by the rest of the country.

  • Barry Gold||

    It seems to me that most people who look at this conflate two different ways you can get to a "you have to join the union" situation.

    One is the way that exists in California and, I think, Illinois: there is a State law that says you have to join the public employee union if there is one. I can see an argument that this violates the worker's rights.

    But there's another way this can happen: a "union shop" contract. That is, the employer (the state) and the union arrive at an agreement that all workers must join the union shortly after being hired. That is the way it is usually done in the private sector -- at least for those few industries that still have unions and "union shop" contracts. It seems to me that having the state be one of the parties to the contract doesn't change the validity of it. It's still an agreement, a "meeting of the minds" between the two negotiating parties. And those negotiations are real, not like the "negotiation" that leads to your contract with the bank that issues your credit card, where they present a contract on a take-it-or-leave it basis. (A "contract of adhesion" in legalese)

  • DC_36||

    One is the way that exists in California and, I think, Illinois: there is a State law that says you have to join the public employee union if there is one. I can see an argument that this violates the worker's rights.

    But there's another way this can happen: a "union shop" contract. That is, the employer (the state) and the union arrive at an agreement that all workers must join the union shortly after being hired. [...]

    How are these two things different ?

    The government being the party to the contract changes everything.

  • Barry Gold||

    The writer of this article seems to be prejudiced against unions. If I pay money to The Gas Company, I don't get to say, "Hey, you're spending 10% of the money I pay for natural gas on political ads that I find offensive. Give me that 10% back."

    The union is providing a service: representation. They negotiate contracts, and if your boss tries to fire you without good reason they will (usually) provide some help in fighting that. You pay for that service. The provider (union) should be free to do whatever it likes with that money, including spending some of it on salaries and other compensation for their executives and spending some of it on political ads.

    The fact that joining the union is tied up with having a job for a particular employer is irrelevant. Nothing in the Constitution says that you have a right to a particular job. (You _do_ have the right to seek employment, but not necessarily in any given industry or for any given employer if you don't like the conditions.)

  • DC_36||

    Difference is choice - you have a choice to pay the gas company or not.

    Taking money from someone, without consent, is wrong, period. Even if you offer them something in return. They have the right to refuse. If you are going to argue that point, there's no point in discussing union dues with you.

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