(OLYMPIA, Wash.) The Freedom Foundation on Dec. 6 submitted a pair of amicus curiae briefs in support of the petitioner in Janus v. AFSCME, the pending U.S. Supreme Court case that could bring “right-to-work” protections to public employees nationwide.
The case, which the court agreed to consider in September, will likely be heard in February, with a ruling to follow by the end of June.
As with Friedrichs v. California Teachers Association, which ended in a 4-4 split decision last year, the plaintiff in Janus argues that compelling workers to pay agency fees to a union, and thereby fund the activities of an organization whose values they do not share, is a violation of their First Amendment rights to free speech and association.
Ironically, the court has agreed with that characterization since 1977. In Abood v. Detroit Board of Education, the justices recognized the constitutional problems with forced unionization but agreed to a compromise to preserve “labor peace.”
Under Abood, workers were allowed to opt out of full union membership but could still be forced to pay “agency fees” amounting to their share of what it cost the union to negotiate a collective bargaining agreement. The unions argued that, since all workers would be paid union wages whether they were union members or not, even unaffiliated workers should be required to help pay the costs of negotiating a contract.
Janus seeks to overturn Abood on several grounds, and one of the Freedom Foundation’s amicus briefs deals directly with the “labor peace” argument.
“Recent research shows ‘agency fee’ provisions undermine labor peace rather than promote it,” the brief notes. “This constitutes the death knell for the constitutionality of agency-fee provisions – which this court recently called a ‘jurisprudential anomaly.’ ”
The labor peace argument suggests there will be more and longer strikes in states where workers paying full dues are resentful of “free riders.” But in fact, just the opposite is true. According to the Freedom Foundation’s research, there have been far fewer work stoppages – and they’ve been resolved sooner – in states with right-to-work protections than those without them.
“Agency fees are either unconstitutional because they serve no compelling state interest or because they are broader than necessary to serve any possible state interest,” the brief concludes. “Either way, the court should overrule Abood.”
The second Freedom Foundation amicus brief assumes the Janus ruling will invalidate Abood and urges the justices to include wording in it that would make enforcement easier.
In 2014, the Supreme Court in Harris v. Quinn laid the groundwork for Janus by declaring that Medicaid-compensated home-based healthcare and childcare providers were not full-fledged public employees and could not be forced to pay union dues and fees. Rather than simply conceding defeat, however, unions in states like Washington simply changed the rules to state that every worker was assumed to be a union member – and dues-payer – until he or she expressed a desire to leave and negotiated a long and complicated opt-out process.
The Freedom Foundation argues it should be the other way around. Before a union can start deducting dues or fees from a worker’s paycheck, the burden of proof should be on it – not the worker – to show the worker wants to pay.
“The First Amendment permits dues seizures only after workers affirmatively consent to the payment of union dues,” the amicus brief explains. “Otherwise, even in the absence of compulsory union fees, workers’ First Amendment rights are inevitably reduced to illusory guarantees.”
“The Harris ruling gave unions three years to come up with ways to avoid complying with the law,” said Freedom Foundation Chief Litigation Counsel David Dewhirst. “We’ve seen the union blueprint and led the nation in fighting against it. Our brief simply observes that a great ruling in Janus will ring hollow if the court leaves a loophole that allows unions to keep doing what they’ve always done.”
The Freedom Foundation is a member-supported, Northwest-based think and action tank promoting individual liberty, free enterprise and limited, accountable government.
David Dewhirst, Chief Litigation Counsel