Janus v. AFSCME – Unions and Accountability at a Crossroads

Union workers gather at a Working People's Day of Action rally in support of unionized employees outside a Boston Firehouse in Boston, Massachusetts, USA, 26 February 2018. (Photo: CJ GUNTHER/EPA-EFE/REX/Shutterstock)

The Supreme Court heard arguments in the case of Janus v. AFSCME on Monday to determine the fate of compulsory public sector unions. The case arose when Mark Janus challenged compulsory union dues and membership to the American Federation of State, County, and Municipal Employees (“AFSCME”) union a public sector union as a violation of his First Amendment rights of free speech (and freedom of association).

Members of the AFSCME include government employees of all walks, including firefighters, police officers, social workers, and government bureaucrats. The determination of this case has the potential to fundamentally reshape unions in the United States by curtailing compulsory union membership in public employment and establishing a de facto “right to work” policy for American civil servants.

Unions in the United States have a long and rich history from both a political and cultural standpoint. Labor unions have existed in the United States since its foundation, with the first recorded strike in the country taking place in 1768 in response to proposed wage lowering. Historically, American labor unions have fought for better labor conditions, retirement pensions for employees, and increased wages through labor stoppages, restricting labor supply, and collective bargaining.

Over time, unions in the United States began to fall prey to corruption. This evolution caused a schism in the 1900s due to a split in the views on the appropriate avenue to meet union goals to pursue political answers or to bargain with management for benefits. Political activities began to bump against anti-trust law in the U.S., which required reform of formerly pro-union statutes in U.S. law and, in turn, cemented the shift of unions to a quasi-management entity. Today, union membership itself sits at about 14.7 million individuals (7.2 million public sector), or 10.7% of all wage employees.

Members of local labor unions and Bay Area Rapid Transit train workers participate in a protest in front of the Lake Merritt Bart Station in downtown Oakland, California, USA, 18 October 2013. (Photo: John G. Mabanglo/Epa/REX/Shutterstock)

The lasting successes of labor unions in the United States are easily noted, such as the 40-hour work week, the minimum wage, and the end of child labor in the United States. These accomplishments make unions synonymous with workers’ rights and the American Dream. America’s largest union, the American Federation of Labor-Committee for Industrial Organization (“AFL-CIO”) proudly champions itself as the largest union in the country and touts its achievements on behalf of American workers. The AFL-CIO was the primary force behind shaping much of the U.S.’s labor and union policy.

In recent times, the AFL-CIO itself has opposed numerous “right to work” ballot initiatives as a threat to American workers. However, right to work policies empower employees to enter into employment without having to join a union, regardless of the presence of a collective bargaining agreement. Such initiatives are intended to give employees a choice to opt in or out of union membership. To date, right to work policies are only in force in 28 states, and there is no federal right to work law.

Enter Mark Janus.

The Illinois Department of Healthcare and Family Services employee is seeking to overturn federal policy in favor of public sector unions. Janus argues that the AFSCME’s message, lobbying and spending activities, and political activism is not a platform he shares. Janus’s challenge to public sector unions is simple; he should not have to join and pay a union to engage in speech he disagrees with. Such lobbying activity and the funding of certain speech is deemed an exercise of speech under the Constitution (a combination of McCutcheon v. Federal Election Commission and Citizens United). Public employees do not have absolute free speech rights like private citizens do, so the case represents whether Janus, whose speech rights are already limited, must be compelled to adopt the union’s speech.

Members of local labor unions and Bay Area Rapid Transit train workers participate in a protest in front of the Lake Merritt Bart Station in downtown Oakland, California, USA, 18 October 2013. (Photo: John G. Mabanglo/Epa/REX/Shutterstock)

While news headlines frame the case as one to “gut” public sector unions, it’s important to divorce the headline sensationalism from the modern reality of unions and their activities. Indeed, if unions require compulsory membership and “right to work” poses such a threat to the lifeblood of unions, shouldn’t that call into question whether union support continues to provide value or if it is simply a historical relic.

Today, unions are among the most prolific campaign donation entities in the United States and largely contribute to Democratic campaigns (Over 98% of all union donations). In 2016 alone, unions contributed $115,628,889 to Democratic entities. Modern public sector union strongholds such as Detroit stand as testaments to the fraud and waste of public moneys that flow from public sector unions like $56,000 for a farrier on the public payroll; Detroit employs no horses. Federal unions are estimated to waste roughly $157 million in taxpayer funds by conducting union activity during on-the-job hours. During the Obama administration’s Veterans Affairs scandal, the primary pushback against accountability in the department came from unions pleading for additional due process, despite excessive protections for government employees.

President Franklin Delano Roosevelt predicted the issue of public sector unions best when he said in a letter to Luther Steward (President of the National Federation of Federal Employees): “All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service… The employer is the whole people, who speak by means of laws enacted by their representatives in Congress.”

Democratic congressman from Michigan John Conyers attempts to pass through the northwest gate of the White House to deliver ‘more than 2 million signatures in support of expanding social security benefits’ in Washington DC, USA, 13 July 2015. (Photo: Jim Lo Scalzo/Epa/REX/Shutterstock)

What President Roosevelt noted, and what Janus’ lawsuit captures, is the inherent contradiction of public sector unions. Unions, by their nature, represent their constituency first and foremost. What this means is that the union’s interests are those of the laborers and employees who comprise membership, not the customers or the clients of those laborers and employees. Put another way, unions represent those who pay dues, not those who pay the salaries of those who pay dues. In public sector work, this presents a dilemma, since civil service is meant to be public interest employment, not private interest. Public sector unions, then, operate as a bulwark against serving the public interest and effectively leverage governmental efficiency against the taxpayer in exchange for preferential treatment.

Janus’ opposition to such policies and mentalities are before the Supreme Court for consideration. Under the 1977 precedent in Abood v. Detroit Board of Education, government employees who “benefit” from a collective bargaining agreement must pay union dues. This pro-union decision assumes a uniform benefit or value of union membership that is not in alignment with modern union reality. The political activism of unions, the dynamics of public sector employment, and the need for accountable governance do not reconcile the Abood decision with the concerns enunciated by Janus.

The Court must decide whether such compulsory drafting and money-gathering is an imposition on the First Amendment rights of public sector employees. The lack of a national “right to work” precludes Janus from opting out of funding union speech, and current jurisprudence states that Janus must participate in this speech.

Members of unions who work at the Metropolitan Opera listen to speeches during a labor rally across the street from the Metropolitian Opera at Lincoln Center in New York, USA, 1 August 2014. (Photo: Justin Lane/Epa/REX/Shutterstock)

The Supreme Court is not weighing in on whether unions remain strong in the United States that question should be determined by the union’s objective value, merit, and functionality. Instead, the Court must determine whether public sector employees must adopt specific speech by operation of their employment. The history of unions in the United States, while admirable, should not cloud decision-making when it comes to the current activities of public sector unions and their impact on taxpayers, employees, and policy.

Should the Court rule in favor of AFSCME, the ruling will be clear: freedom of speech and freedom of association are forfeited upon acceptance of government employment. Such a decision would have a chilling effect on diversity of thought within government offices and would prop up public sector unions, regardless of their merit. Should Janus win, public sector unions would potentially lose large swathes of membership, but, in turn, unions would have to become more attractive as an investment for those lost members a wake-up call of sorts. Ultimately, the Supreme Court must determine which entity means more to governance unions or employees.

(Brandon Davis)

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