Public Unions Facing A Legal Threat

February 2018 – Public-sector unions have long drawn the ire of budget conscious lawmakers who have had to combat calls for higher public employee pay in the face of economic hard times when these lawmakers were at the same time having to cut program costs to many of their vulnerable constituents.  However, this year unions are facing a very different threat. On the Supreme Court’s 2018 docket is a case asking why should government employees be forced to subsidize private organizations that then can use the funds to advance policies the employee-themselves may disagree with.

The case which is Janus v. American Federation of State, County and Municipal Employees 31, et al. draws its strength from the First Amendment. It asks why should financial support of an organization be a condition of employment. Aren’t the freedoms to associate, and speak freely protected in the U.S. Constitution?  Why should employees be directed to support an organization which may have diametrically opposed views, from the employee themselves simply to enable them to earn a living in order to support themselves and their family.

The seed of the Janus case would appear to have been planted in a holding from a Michigan initiated case nearly 40 years old. In Abood v. Detroit Bd. of Ed. (1977), the Supreme Court held that requiring employees to pay funds to a union potentially violated the employees’ First Amendment rights. Union members were paying these organizations as a condition of employment and “voluntary union membership.”

The Court ruled that this burden on the First Amendment was justified as to payments used for collective bargaining purposes, to prevent so-called “free-riding” on the union’s collective bargaining activities. But the Court unanimously held this funding had to be limited to only these collective bargaining purposes and could not extend to pay for any other “ideological causes not germane to its duties as collective-bargaining representative.”

Subsequent litigation had surrounded the issue about what is germane to collective bargaining, about what procedures may be used to gather the permissibly mandated fees without getting too much or too little and the reach of such activities (including collection of bar dues, and  compulsory student fees for university students). There have also been calls to reject the germane/non-germane distinction, and eliminate all government-compelled payments.