Freedom Foundation

Supreme Court may rule union opt-out schemes are illegal

The U.S. Supreme Court is the final word on American constitutional protections. The questions it faces are complex and the Court does not always come to the right conclusion. Sometimes the Court decides to take a second look at issues it previously decided. Janus v. AFSCME Council 31 is such a case. Janus revisits the Court’s previous decision in Abood v. Detroit Board of Education. Abood held in 1977 that a government may force its employees to pay “agency fees” to a union for bargaining with the government-employer on the employee’s behalf. Agency fees are essentially union dues, less whatever percentage of dues the union decides is used to fund overt political activity. This agency fee system was intended to balance the rights of employees to not fund political speech they did not support, while also paying unions for their services and maintaining “labor peace.”

Abood did not properly strike that balance. The agency fee system has led to the abuse of public employees’ rights ever since it was decided, landing it in front of the Supreme Court numerous times.[1] Agency fees are not supposed to fund “political activity,” but if the employer is a political entity, even routine union activities, like bargaining and grievance administration, are political activities. In 2014, Harris v. Quinn limited Abood’s holding as applied to partial-public employees, people who are paid by the state but work for Medicaid recipients in their homes[2]. Harris held that in-home care providers cannot be forced to pay any dues to unions, even agency fees. Last term, because of Justice Scalia’s passing, the Court split 4 to 4 on whether to completely overrule Abood in Friedrichs v. California Teachers Association. Now, with Justice Gorsuch filling Scalia’s seat, the Court faces the question again.

In Janus, the Foundation filed an amicus curiae brief with the Supreme Court, encouraging the Court to overturn Abood in a practically meaningful way. Amicus curiae literally translates to “friend of the court.” These briefs are intended to give the Justices more context for the questions facing them. The most obvious examples of the role of an amicus curiae are from specialized fields, such as medicine. Courts continually face questions relating to medical malpractice, but rarely do judges have any medical expertise. Judges rely on amicus curiae to inform them on issues, such as medical best practices, that are relevant to the case, but not necessarily legal in nature.

The Foundation’s expertise comes from our attempts to assist in-home care providers in exercising their Harris rights. To evade Harris’ holding, unions implemented comprehensive schemes to continue in practice what the Court prohibited in principle: seizing union fees without workers’ consent.[3] These schemes require public employers to seize full union dues from all workers in a bargaining unit automatically, only ceasing dues seizures after the employee navigates a complicated and opaque “opt-out” process. However, the union rarely and inadequately informs workers of their right to opt-out and creates procedural roadblocks to prevent them from doing so. These opt-out schemes have allowed rampant abuse of non-members and negated the impact of this Court’s decision in Harris.

Since the Harris decision, the Foundation has informed tens of thousands of Harris-affected workers of their First Amendment right to abstain from paying union dues.[4] Based on its extensive Harris-related outreach, the Foundation has seen that simply declaring something a constitutional right does not protect it from abuse. If the Court simply declares that public sector employees have a right to choose whether or not to fund a union, but does not address any of the practical ways to protect that right, all public-sector employees will suffer the same fate as in-home caregivers.

This is the information the Foundation offered to the Court. But, the Foundation did not just outline a problem. Rather, it presented the best solution. The Court should hold that public-sector union dues may only be withheld with the employee’s prior, affirmative consent. This would end agency fee issues and prevent the abusive opt-out schemes outlined above. The Foundation’s solution was supported by dozens of teachers and in-home care providers who wrote about the abuses they faced and feared at the hands of public-sector unions. If the Court acts on the Foundation’s suggestion, the next year will be the most successful in Foundation history. Thousands of workers in Washington, Oregon and California will have the opportunity to make a considered choice about whether or not to fund union activities. The Foundation will ensure that it is an informed choice, based on a real understanding of where their dues money would go. View a copy of the Foundation’s brief here.

A second amicus brief was also filed by Freedom Foundation in the Janus case. Information on that brief can be viewed here.

[1] Ellis v. Railway Clerks, 466 U.S. 435 at 444, 104 S.Ct. 1883 (1984); Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292, 302-03 (1986); Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2291 (2012); Harris v. Quinn, 134 S. Ct. 2618 (2014); Friedrichs v. Cal. Teachers Ass’n, 136 S. Ct. 1083 (2016).

[2] Harris v. Quinn specifically addressed home healthcare providers, individuals who provide care to Medicaid recipients in their homes and are only state employees in that the checks come from Medicaid funds.

[3] Letter from David Rolf, President, SEIU 775NW to Individual Providers (December 18, 2014), at 7 (“SEIU Healthcare 775NW’s Constitution and Bylaws automatically grants you membership. . .  While you need not sign a membership card, we strongly encourage you to do so”)

[4] See, e.g., Hana Kim, Union leaders furious over door-to-door tactic targeting their members, Aug. 3, 2016, available at Q13 Fox Storyour blog post