1. Even pro-union politicians used to think public sector unionism was too radical.
Long after the pro-union monopoly National Labor Relations Act (NLRA) was adopted in 1935, even strong supporters of this statute rejected the appropriateness of attempting anything analogous in federal, state, or local government.
For example, in 1937, President Franklin D. Roosevelt, who just two years earlier had publicly endorsed and signed the NLRA, wrote a letter to a government union official explaining it is “impossible for administrative officials to represent fully or bind the employer” in dealings with “Government employee organizations” because “the employer is the whole people . . . .”
2. Politicians later empowered private groups to tax government employees.
In the late 1950s and early 1960s, politicians like Robert F. Wagner Jr (New York City mayor and son of the Senate sponsor of the NLRA), Gaylord Nelson (Wisconsin governor), and finally President John F. Kennedy opted to bring monopoly unionism to the public sector.
Wagner, Nelson, and Kennedy all sought to strike a balance by resisting the wholesale imposition of NLRA-style unionism on the public sector. Case in point: Neither the executive order Wagner finally got around to issuing in 1958, nor the statute signed by Nelson in 1959, nor Kennedy’s 1963 federal executive order authorized Big Labor to extract any forced union dues from public servants who chose not to join.
However, today more than 20 states have laws explicitly authorizing forced financial support for unions for some or all categories of public-sector employees. And the vast majority of unionized government workers in the United States reside in these Big Labor-dominated states.
3. Government union bosses’ forced dues powers largely based on a false premise.
It was in 1977’s Abood v. Detroit Board of Ed that the high court originally sanctioned the “undeniably unusual” privilege for government union officials to force public employees, including nonmembers, into paying union dues and fees in jurisdictions where union officials are legally empowered to represent all front-line employees in a workplace.
Justice Potter Stewart, while writing for a six-justice majority, theorized that if union officials claim to be the exclusive representative of all employees in a bargaining unit, they must also have the option to force unwilling workers to pay union dues or fees. Otherwise, he said, such workers would get a so-called “free ride” on the “benefits” of the union’s bargaining and contract administration.
4. Federal courts have long admitted forced dues for government employees is constitutionally problematic.
Federal courts have repeatedly admitted that, to a greater extent even than government-authorized forced union dues in the private sector, compulsory union dues or fee payments to government unions (often euphemistically referred to as the “agency shop”) are constitutionally problematic.
Justice Antonin Scalia was particularly blunt in his opinion for a unanimous Supreme Court seven years ago in Davenport v. Washington Education Association. Scalia observed that, while the judiciary has tolerated government forced unionism in a series of cases, it has always done so reservedly:
[I]t is undeniably unusual for a government agency to give a private entity the power, in essence, to tax government employees. . . . [A]gency-fee cases [do] not balance constitutional rights . . . because unions have no constitutional entitlement to nonmember-employees’ fees.
5. In recent developments, mothers took on a governor and politically-connected union.
In early fall 2009, Pam Harris, a resident of suburban Chicago and mother of a young adult son with severe developmental disabilities, received a form letter from agents of Illinois Gov. Pat Quinn informing her that, as a care provider for her son in Illinois’ Disabilities Program, she now could cast a mail-ballot vote regarding which of two unions would be installed as her monopoly-bargaining agent in her dealings with the state.
On June 29, 2009, Quinn had signed an executive order designating 4,500 individuals who offer in-home care to disabled persons as “public employees,” thus rendering them vulnerable to unwanted union organizing. However, the scheme only designated providers as public employees for the purposes of unionization, leaving the homecare recipients as the employers for all other aspects of the providers’ work.
If the Supreme Court had found the scheme to be constitutionally permissible, the implications would have been enormous. Doctors who accepted Medicare or Medicaid could have been forced by gubernatorial executive order or state legislation to accept a particular private organization as their lobbying agent. Moreover, doctors could have been forced to pay mandatory dues and fees to such an organization.
Similarly, impoverished parents who participate in food stamps could have been forced to join or pay fees to a government designated lobbying agent.
6. Harris and other providers blocked an expanded shakedown.
Over the course of the rigged unionization “election” in late 2009, Harris and other parents pooled their money to print and distribute a flyer countering the Quinn team’s propaganda. The independent-minded providers’ shoestring effort succeeded. Providers ultimately voted two-to-one for “no union.” Nevertheless, Service Employees International Union (SEIU) and American Federation of State, County, and Municipal Employees (AFSCME) union officers continued to press ahead with their efforts to gain monopoly-bargaining privileges over the caregivers in the program.
Meanwhile, an estimated 25,000 Illinois at-home caregivers in a similar, but much larger, Medicaid waiver program were already being forced to pay union dues as a condition of receiving state assistance under a scheme launched by then-Gov. Rod Blagojevich (now imprisoned) and subsequently codified by state legislators in 2003.
In 2010, Harris and seven other home care providers filed suit. In written briefs and oral arguments presented to federal district and appellate courts and, finally, the Supreme Court, National Right to Work Foundation attorneys contended on the plaintiffs’ behalf that, because the state of Illinois was not their common-law employer or their sole employer, the Abood excuse for compelling employee financial support for unions did not apply to them.
7. The Court’s Abood majority acknowledged that forced union dues violate workers’ freedom to associate.
Concerns about the potential inequities resulting from “exclusive” union representation are one plausible reason for abolishing it in public-sector workplaces. But they are no justification for forcing nonmembers to financially support a monopolistic union. And the oral arguments in Harris v. Quinn, the first direct challenge to the constitutionality of government-sector forced union dues since Abood, highlighted one key reason why not.
The Abood majority opinion conceded up front:
To be required to help finance the union as collective-bargaining agent might well be thought . . . to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.
The opinion proceeded to try to square this admission with support for the permissibility of forced financial support for a government union under the First Amendment by simply assuming that all public employees, including union nonmembers, who are subject to union monopoly bargaining benefit thereby.
8. Union lawyers admit public workers may be forced to pay a union to ‘make an argument’ with which they disagree.
During the Harris oral arguments this January 21, SEIU lawyer Paul Smith (who also represented Quinn) could not help but tacitly acknowledge, first of all, that significant numbers of nonmembers are made economically worse off by “exclusive” union representation.
At one point in the oral arguments, Justice Samuel Alito cited the example of a “young employee” who is “not very much concerned at this point about pensions,” but “realizes there’s a certain pot of money, and it’s either going to go for pensions or it’s going to go for salary at the present time.” Alito went on to ask Smith:
So that employee who’s not a member of the union has to pay for the union to bargain with the–the State to achieve something that’s contrary to that person’s interest. But you say that person is a free rider.
Smith’s response: “Yes, your Honor. . . .”
9. A Court majority struck down the scheme, but left government union bosses’ forced dues powers intact.
In his 39-page opinion of the Court, Alito basically concurred with the plaintiffs that Abood should be overruled. But rather than actually overrule it, Alito and the four other justices who joined in his opinion merely refused to allow it “to be extended to those who are not full-fledged public employees . . . .”
In opting not to overturn Abood, the Harris majority may merely have been abiding by the widely (albeit far from universally) accepted rule that “courts should not decide more than the occasion demands.”
However, the Harris opinion strongly suggests that Abood was wrongly decided, calling its “analysis questionable on several grounds.”
10. The Harris dissent matters, too.
Judging by the strenuous effort to shore up Abood in Justice Elena Kagan’s Harris v. Quinn minority opinion, she and her fellow dissenters do not believe it is too late to save the precedent that has protected forced union dues in the government workplace for nearly 40 years.
Kagan’s dissent did not completely ignore the specific issue of forced unionism in Illinois’s Rehabilitation Program that was being challenged in Harris. For example, she insinuated the plaintiffs ought to be grateful for SEIU-boss bargaining, which, she insisted, was responsible for the fact that the “wages” of home-care assistants “have nearly doubled . . . in less than 10 years . . . .”
Not surprisingly, Kagan’s uncritical rehashing of SEIU propaganda left out key facts, including the most important of all: The higher “pay rates” for home caregivers for which union bosses purport to fight may, if achieved, leave patients with less money to cover the other expenses they incur while being treated at home.
In the full-throated defense of Abood to which she devoted the bulk of her dissent, Kagan also insisted that government-imposed restrictions on public employees’ freedom to disassociate from a union should not be subject to “strict scrutiny,” the technical name for a type of judicial review in which a law is upheld only if it advances a “compelling governmental interest” and is “narrowly tailored” for that purpose.
11. The dissent runs contrary to years of federal court precedent.
What Kagan and the other dissenters apparently forgot is that federal courts have already repeatedly ruled that the government as employer does not have wide “constitutional latitude” to limit the First Amendment freedom of public employees to join a labor union. Forty-five years ago this February, a federal court overturned North Carolina’s statutory provisions restricting municipal employees’ right to join aid and assist labor organizations, finding them to be “an abridgment of the freedom of association protected by the First and Fourteenth Amendments of the U.S. Constitution.”
This conclusion by a three-judge panel on the U.S. District Court for the Western District Court of North Carolina quickly gained wide acceptance in federal courts across the country. Several courts in other circuits also explicitly affirmed that the First and Fourteenth Amendments prohibit laws and policies curtailing front-line employees’ personal right to join and form a union.
Moreover, other established court precedents make it clear that, if an employee’s choice to associate with a labor union is constitutionally protected, his or her choice not to associate must be similarly protected, since the government has no legitimate authority to “prescribe what shall be orthodox” in the realm of politics, conscience and ideas. Consequently, since government restrictions on the individual public employee’s freedom to join a union have been subject to the judiciary’s “strict scrutiny” test for nearly half a century, restrictions on the freedom not to join a union should have to pass this test.
12. Millions of public servants remain subject to compulsory unionism.
Thanks to the Harris decision, an estimated 500,000 home-care providers nationwide who are currently being forced to pay dues to a union may have a free choice in the near future as the 14 states that currently have home-care compulsory-dues schemes like Illinois come into compliance with the ruling.
In Illinois alone, where roughly 25,000 home caregivers were annually forced to pay union dues or fees, Big Labor could lose as much as $11 million a year. Nationwide, government union chiefs could be out as much as $80 million annually.
Of course, this is but a pittance compared to the billions of dollars in annual losses the union hierarchy would have faced if all of the roughly 5.8 million unionized public employees in non-Right-to-Work states were suddenly free from the threat of termination for refusing to bankroll an unwanted union. Encouragingly, the High Court in Harris did cast into grave doubt whether state laws and policies authorizing forced union dues from public servants are permissible under the First Amendment.
However, at least for the near future, the task of actually eliminating these constitutionally dubious statutes and policies has been left to state legislative and executive officials.
About the Author: Stan Greer is the National Institute for Labor Relations Research’s senior research associate. This article originally appeared in The Federalist, and is republished here with permission from the author.