In late September, the U.S. Supreme Court agreed to hear arguments in the Janus vs. AFSCME case, that challenges public-sector unions' right to collect dues from non-members and if successful would create a virtual right-to-work environment for all public employees in the U.S.
If you have the opinion that it is fundamentally unfair for a worker in a bargaining unit not paying dues to enjoy a collectively bargained wage and benefit package, or to force his union to file a grievance on his behalf, or for the union to try to win him his job back if he is fired, then you are not alone. In the last four decades for public sector workers, the nation's courts have been guided by the Supreme Court’s 1977 ruling in Abood v. Detroit Board of Education. which ruled that public unions could lawfully charge fees to nonunion members to help offset the costs of “collective bargaining, contract administration, and grievance adjustment" that benefit all employees, as long as the union doesn't use the fees for political purposes.
By the end of this Supreme Court's term, however, for public sector workers, that Abood ruling is probably going to stop being the law of the land, likely to replaced by a guiding ruling that lets free-riders in bargaining units in all 50 states stop paying dues, while still getting the benefits of being in a union. President Trump's appointment of conservative Supreme Court Justice Neil Gorsuch this year almost certainly sealed the deal on a national right-to-work law for all public sector workers.
So it there a legal way out of this mess for the nation's public labor unions? Well, there's at least an interesting theoretical argument against representing free-riders. The headline over an article by Daniel Horwitz published Oct. 9 in the online Slate website summed things up nicely: "If the Supreme Court thinks nonmembers can’t be compelled to pay union fees, then unions can’t be compelled to represent nonmembers."
Horwicz argues: "Critical to any discussion of Janus is the fact that federal law also compels unions to advocate on behalf of nonunion members. Thus, overturning Abood would immediately incentivize free-riding, thereby threatening public-sector unions’ very existence. If the court overturns Abood as anticipated, though, unions should immediately challenge their obligation to represent free-riding nonmembers as a violation of their own rights under the First Amendment. And they should win."
According to Michigan Building and Construction Trades Council attorney John Canzano, who unsuccessfully appealed the legal legitimacy of the state's new right-to-work laws in 2013 along with other top labor lawyers in Michigan, Horwicz's argument is intriguing because it takes a unique direction. "I agree with him 100 percent," Canzano said.
Writes Horwicz: "The plaintiff in Janus - a child-support worker in the Illinois Department of Healthcare and Family Services - contends that all public-sector union activities are inherently political. Thus, he argues, the fair share arrangement contemplated by Abood must be overturned, because forcing him to subsidize political causes with which he disagrees violates his First Amendment rights.
"But the notion that unions must advocate on behalf of nonunion members like Mark Janus at all actually violates unions’ First Amendment right to freedom of association. Forcing unions to advocate on behalf of nonmembers for free, however - as the court is poised to do - would be comically unconstitutional."
Horwicz is "elevating it to a freedom of association, constitutional issue - and I'm not sure that argument has ever been made," Canzano said. "I think it makes a lot of sense."
Horwicz continues: "But the violation of unions’ First Amendment rights is more severe than merely compelling them to spend money. In addition to depleting unions’ resources, compelling unions to advocate on behalf of nonmembers who frequently oppose their very existence, represents a severe violation of unions’ First Amendment rights to determine their membership and the terms of their association."
"Given this reality," he added, "the court has long recognized that 'freedom of association therefore plainly presupposes a freedom not to associate.'"
In other contexts, Horwicz says, "allowing the government to force organizations to advocate on behalf of people who oppose them would lead to results that most would properly regard as absurd. For instance, what would be left of the right to associate if the government could compel Republicans to allow Democrats to vote in their nominating conventions?"
Horwicz's article doesn't probe the practical outcome of such a court ruling. Since the 1930s, the National Labor Relations Act says unions have "the duty to represent all employees - whether members of the union or not - fairly, in good faith, and without discrimination." Unfortunately, if a future case is successfully argued before the Supreme Court that compels non-members to pay for services rendered by the union, the real-world benefits are not likely to be game-changers in terms of overturning right-to-work laws.
"In reality, it may be a valid legal argument but is this something unions want?" Canzano asked.
Let's say Horwicz's First Amendment argument is successful in front of a future Supreme Court. In the real world workplace, a free-rider who is then told by the union to take a hike and make his own deal with the employer, and gets the same or a better deal from that employer than the union received, would greatly weaken a union's case for its own existence. Plus, unions have traditionally argued that they should be the sole negotiator in their workplace, even for nonmembers, because it gives them a stronger hand during negotiations. And if there are only a handful of non-dues payers in a bargaining unit, does it make financial or practical sense to bill the free-riders to file a grievance, when there may not be a lot of money at stake?
Of course, there are exceptions, especially if there are more than a handful of free-riders in a bargaining unit. And if that number of free-riders gets to the 50 percent mark, the very existence of the union risks being eliminated by a majority vote of the bargaining unit.
That's really the essence of the effort by the National Right-to-Work Committee and others who are pushing for a national RTW law with the goal of emasculating the nation's labor unions. Starve unions of dues money, the theory goes, and the unions will eventually wither away.
Successfully using the First Amendment's freedom-to-not-associate argument brought up by the Slate writer could chip away at the Supreme Court-imposed national right-to-work law that's surely coming. (Although it wouldn't have an immediate application on statewide right-to-work laws like those in Michigan and other states that are already in place). The bottom line is that the imposition of right-to-work on public labor unions was a matter sealed last November, when President Trump was elected with the full expectation that he would install conservative, anti-union Supreme Court justices. With the installation of one of them, Justice Gorsuch, earlier this year, they now enjoy a 5-4 majority on the High Court.