The U.S. Supreme Court Wednesday rendered a sweeping decision that frees non-members from having to pay dues to public sector unions, a ruling that overturns a previous decision and could be financially lethal to organized labor.
In a 5-4 decision in Janus v. AFSCME, Justice Samuel Alito said the ruling had to be broad because of the fundamental free speech questions involved.
“States and public-sector unions may no longer extract agency fees from nonconsenting employees,” wrote Alito. “This procedure violates the first amendment and cannot continue.”
Wednesday’s verdict formally overturned the court’s 1977 Abood v. Detroit Board of Education decision, that said unions could extract some fees from the paychecks of non-members, but not for political purposes.
The National Right to Work Legal Defense Foundation represented Illinois government employee Mark Janus before the Supreme Court. The group’s president, Mark Mix, says the past 41 years proved the previous decision simply didn’t solve the problem.
“This regulatory structure is unworkable and that this case deserves what is called strict scrutiny in the legal process. That means this is a question of pure first amendment rights.
“Everything government unions do is political. They’re telling government how to allocate their resources so we went from this Solomon-like decision of splitting the baby to slicing the bologna ever thinner and trying to regulate it in even more and greater ways to throwing up their hands, saying, ‘You know what? We’re doing this wrong. Let’s get to the basic question of the first amendment,'” said Mix.
“They did that today and what they said is government employees across the nation have a first amendment right against being forced to pay fees as a condition of their employment,” he added.
The Supreme Court has taken up the issue six times since the Abood decision. In a 2012 case, the court was examining a narrower question but Mix says Alito noted then that broader questions had to be addressed.
Justice Elena Kagan authored the primary dissent in the Janus case, arguing that the majority was meddling in a process that ought to play out for itself.
“It wanted to pick the winning side in what should be — and until now has been — an energetic policy debate,” she wrote. “Today, that healthy — that democratic — debate ends. The majority has adjudged who should prevail.”
Mix is not swayed.
“Justice Kagan doesn’t realize that we’ve had literally hundreds of lawsuits across the country at every level of government on this issue and every level of the court system on this issue. She probably hasn’t seen the frustration from judges across the entire country who have tried to sort out what the court said in the Abood case and what’s in and what’s out.
“So this robust debate that she talks about is just ridiculous. This is about a scheme that union officials have enjoyed for 40 years and giving them the privilege to extract money from workers who never wanted them, never asked for them, and never voted for them and now that’s over,” said Mix.
During oral arguments earlier this year, Kagan stopped National Right to Work Legal Defense Foundation attorney Bill Messenger presentation to ask about the union reliance on those dues.
“What our attorney said is you can’t rely on anything that violates the first amendment. If you’ve relied on it in the past, it’s been wrong and they got it right this time. So to Justice Kagan, the needs of the many don’t outweigh the rights of the few,” said Mix.
Mix says this decision does not gut unions as organized labor activists contend, since non-members are free to give as much of their income as they want to the public sector unions.
Critics of this decision also insist non-members ought to pay some dues since they benefit from the collective bargaining conducted by the unions. Mix rejects that argument, noting that collective bargaining often results in wages being allocated by seniority rather than productivity or skill.
“The fact of the matter is if these workers could speak for themselves, often times many of them would do better than the monopoly power that union officials have had over them and continue to have over them in states that allow them to be the only voice for workers in the marketplace,” said Mix.
So what comes next in this fight between organized labor and the right to work movement? Taking this same fight to the private sector.
“The next step is to end forced fees across the entire country, whether we do it state by state or Congress goes into a 1935 New Deal piece of federal legislation that (Franklin) Roosevelt jammed through the Congress and jammed through the Supreme Court that forces private sector workers to pay dues to get or keep a job. We can strike that down too. That’s the next battle,” said Mix.