Elected officials, the courts and John Q. Public are supporting worker freedom these days; teachers unions and other public employee unions are on the run.
Last Monday, Illinois governor Bruce Rauner issued an executive order that, if it stands, will absolve state workers from paying forced dues to a union. As The Wall Street Journal reports, Rauner declared that Illinois’s contracts with public unions “violate the First Amendment by forcing workers to associate with the union against their will.” Rauner instructed all state agencies to keep the workers’ dues in escrow, pending the outcome of a federal court lawsuit that he filed the same day.
Needless to say, the unions and their friends in Springfield aren’t doing cartwheels over his right-to-work (RTW) directive. Even prior to the order, the teachers unions had targeted the recently elected governor. Two weeks ago, Chicago Teachers Union boss Karen Lewis attacked Rauner, accusing him of being (Wisconsin governor) “Scott Walker on steroids.” Also before the announcement, local teacher union lobbyist Matthew Johansson declared that the governor is trying to “destroy us.”
After the announcement, Illinois Education Association president Cinda Klickna said that the attack on “fair share is extremely serious and will be monitored very carefully.” She added, “This attack is clearly intended to weaken the unions that fight for the middle class and for the students who attend our schools. We can’t let that happen.” The Illinois Federation of Teachers referred to the action as a “blatant abuse of power.”
The reality – beyond the union harrumphing and all-around hysteria – is this: In 26 states and D.C., workers are forced to pay unions as a condition of employment. The unions call this “fair share” because they say all workers benefit from their collective bargaining efforts. But if a worker doesn’t want to be part of the collective, he/she still must belong because the union demands monopoly status; a worker is not allowed to bargain on his/her own or hire another party to do so.
Hence RTW is quite simply an individual-rights issue. The workers the unions refer to as “free riders” are really “forced riders.” If you were going from Point A to Point B and wanted to walk, how would you feel if someone told you that you had to take the bus … and, of course, pay for the ride to boot?
Very importantly, not only does RTW liberate workers, it has many other far-reaching benefits. After Michigan became a RTW state in 2012, the West Michigan Policy Forum reported, “… of the 10 states with the highest rate of personal income growth, eight have right-to-work laws. Those numbers are driving a net migration from forced union states: Between 2000 and 2010, five million people moved to right-to-work states from compulsory union states.”
Also, in a new economic profile, the Illinois Policy Institute’s Paul Kersey reports that RTW states are much stronger economically than their forced-dues counterparts:
- From 2002 to 2012, states with right-to-work laws saw a 7.2 percent increase in payroll employment, compared to a 2 percent increase in other states.
- As of September 2014, right-to-work states had an average unemployment rate of 5.5 percent, compared to 6 percent in non-right-to-work states.
- From 2000 to 2010, right-to-work states saw population growth that was twice as fast as that in other states (13.6 percent compared to 7.3 percent).
- Median wages in right-to-work states appear $4,345 lower than in other states. However, once you take into account cost of living and local taxes, right-to-work state wages rise. In fact, the cost of living is 16.6 percent higher in states without right-to-work laws.
- Right-to-work economies grew by 62 percent from 2002 to 2012, compared to just 46.5 percent growth in other states.
Much to the unions’ consternation, the RTW movement is picking up momentum across the country. Politico’s Brian Mahoney reports that legislation has been introduced in New Mexico, Missouri, West Virginia and Kentucky.
The bills have already cleared committee hurdles in New Mexico and Missouri. All but the Missouri bill were introduced by Republicans; in Missouri, the measure was introduced by state Rep. Courtney Curtis, a Democrat and an African-American who would limit right to work to the construction industry to combat what he sees as bias in minority contracting. In Kentucky, right-to-work ordinances have been passed in five counties, though it isn’t clear federal law allows the adoption of right to work anywhere except at the state and territorial level. Legal challenges are already underway.
Additionally, the American people are strong supporters of RTW laws. In a poll conducted right before Labor Day last year, Gallup found that 82 percent of Americans agree that “no American should be required to join any private organization, like a labor union, against his will.” Also, as Mike Antonucci reports, by a 2-1 margin – 64 to 32 percent – “Americans disagree that workers should ‘have to join and pay dues to give the union financial support’ because ‘all workers share the gains won by the labor union.’”
Much of the recent RTW activity has been undoubtedly spurred by the June 2014 Harris v Quinn Supreme Court decision, in which SCOTUS agreed with the National Right to Work Legal Defense Foundation, ruling that homecare workers in Illinois could not be forced to join the Service Employees International Union.
And in the legal on-deck circle is Friedrichs et al v CTA, which is on a path to reach SCOTUS within a few months. This litigation has ten teachers and the Christian Educators Association International – a union alternative – taking on the California Teachers Association with a lawsuit aimed squarely at California’s “agency-shop” law, which forces teachers to pay dues for collective bargaining activities. The Center for Individual Rights is representing the teachers, with help from Jones Day, an international law firm.
So, let’s see – RTW is gaining favor in state houses, the courts and with the citizenry. And please keep in mind, no one is talking about outlawing unions; RTW is simply about making them voluntary associations, just like every other organization in the U.S. Really nothing controversial, unless you are a wolf that preys on workers … all the while pretending to be a shepherd.
Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.
Summary: Two current cases offer the U.S. Supreme Court opportunities to stop abuse. The National Labor Relations Act declares that “encouraging the practice and procedure of [monopolistic] collective bargaining” is “the policy of the United States.” Federal courts have often treated that declaration as if it authorized union officials to do whatever they deem necessary to bring employees into unions. Fortunately, in one case heard in November and another set to be heard this month, the U.S. Supreme Court may identify some important limits on union officers’ special legal privileges.
The National Right to Work Legal Defense Foundation provides legal representation to Americans who are fighting compulsory membership in labor unions, or compulsory payments by workers to those unions. Currently, the Foundation has two cases before the United States Supreme Court, the Mulhall case and the Harris case. Depending on the outcomes, these cases could have significant impacts on people’s right to choose whether to join labor unions.
First, let’s look at the case of UNITE HERE Local 355 v. Mulhall, which was heard recently by the U.S. Supreme Court. The case stems from a so-called “neutrality” deal forged in 2004 between hotel workers’ union bosses in UNITE HERE and an employer, Mardi Gras Gaming. Mardi Gras is the operator of a dog racetrack and a casino located in Hollywood, Florida. UNITE HERE is a union that represents mostly hotel workers and those in related fields such as food and laundry services.
Under the terms of the neutrality deal, Mardi Gras agreed to help officials of Local 355 of UNITE HERE secure monopoly-bargaining power over the company’s front-line employees. In exchange, the union brass agreed to divert a substantial sum of money from their treasuries, laden with workers’ dues, to back a casino gambling ballot initiative that the company wanted passed. Union bosses also promised not to picket or strike Mardi Gras as they sought to unionize its employees.
After the deal was reached, without employees’ input, it became clear that many of them did not want to be unionized by UNITE HERE. One employee, groundskeeper Martin Mulhall, was especially determined to prevent UNITE HERE from being imposed on him and his fellow workers. Mulhall was confident that, provided that employees had the opportunity to make their choice in the privacy of a voting booth, Mardi Gras’ front-line employees would never vote to make UNITE HERE Local 355 their monopoly-bargaining agent. He was chagrined to learn that, under the terms of the “neutrality” deal, UNITE HERE could unionize the workplace without having to face a secret-ballot election first.
Mardi Gras had acquiesced to “card check” recognition of Local 355. That is the sort of thing many businesses have done in recent years in order to avoid Big Labor harassment and negative public relations, or to get something in return from the union. The “card check” process essentially eliminates the secret ballot. Under the longstanding federal court interpretation of NLRA Section 9(a), union organizers may acquire monopoly-bargaining power by collecting signed “union authorization cards,” if the employer acquiesces. Consequently, under the peering eyes of union organizers individual workers may be intimidated into unionizing—signing not just themselves, but all of their nonunion fellow employees, over to union officials’ control.
Mulhall believed that UNITE HERE organizers would never be able to win over a majority of employees without coercion, but that absent the protection of a secret ballot, the union could prevail if given a “card check” process and the opportunities for intimidation it would provide.
That’s especially true because there’s little chance that union professionals would share a critical fact with hesitant employees: that the cards, if signed by a majority, bring the union in automatically, with no secret-ballot vote ever required. Under pressure from union organizers, employees often sign such cards because they incorrectly assume—or are dishonestly told by the union—that by signing they are just calling for an election in which they will later have a chance to vote against the union.
Mulhall was determined to stop the “card check” scheme, but he didn’t know how. He reached out to the National Right to Work Legal Defense Foundation, and in 2008 foundation attorney Bill Messenger filed, on Mulhall’s behalf, a federal suit alleging that key provisions of the “neutrality” deal between Mardi Gras and Local 355 violate the law. The deal has not (as yet) led to unionization of Mardi Gras employees; the company eventually concluded the deal was illegal and repudiated it. I say “as yet” because Local 355 has attempted to enforce the “neutrality” deal in court. Thus, the Mulhall case remains active and in need of resolution.
The case was heard by the U.S. Supreme Court on November 13. Lawyers for Martin Mulhall do not contend that “card check” deals per se are illegal. However, as a practical matter, Mulhall represents a grave threat to “card check” organizing. That makes the case critically important because, according to the best available evidence, “card check” has become private-sector unions’ most important method of organizing.
No wonder Benjamin Sachs of Harvard Law School has referred to Mulhall as, potentially, “the most significant labor case in a generation.” Sachs’ assessment has been quoted in dozens of mainstream and specialized legal media reports on the case.
Gag clause a ‘thing of value’
The major issue in the Mulhall case relates to whether key elements of the agreement between UNITE HERE and Mardi Gras constitute a “thing of value.” The NLRA law’s Section 302(a)(2) makes it unlawful for any employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value . . . to any labor organization . . . which represents, seeks to represent, or would admit to membership, any of the employees, of such employer.
And Section 302(b)(1) makes it unlawful for any union or union officer “to request, receive, or accept, or agree to accept” any such “thing of value.”
As Bill Messenger, attorney for the National Right to Work Legal Defense Foundation, explained in a brief to the Supreme Court, Congress adopted Section 302 largely in recognition of the fact that union monopoly bargaining as authorized and encouraged by the statute “creates a fiduciary relationship.” A fiduciary relationship is one of trust, such as between a trustee and a beneficiary; a trustee must act in the interests of the beneficiary. For example, an attorney must operate in the interests of his or her client. The NLRA-promoted fiduciary relationship between union officers and unionized employees is another example.
Messenger argued that Congress had adopted Section 302 largely to forestall “conflicts of interest in labor relations.” In support of this view, he quoted a U.S. Senate report on the 1959 NLRA amendments that extended the section to cover any union seeking to organize an employer’s employees:
For centuries, the law has forbidden any person in a position of trust to hold interests or enter into transactions in which self-interest may conflict with complete loyalty to those whom they serve.
Agreements to “pay, lend, or deliver” things of value to employees themselves, rather than to union officials, are indisputably permissible. The only “things of value” prohibited are those rendered by employers to union officials (except for some explicit exceptions in the law).
In the case now before the Supreme Court, Mulhall contends that three types of organizing assistance promised by Mardi Gras to Local 355 as part of their “neutrality” deal constitute “things of value” prohibited by Section 302:
(1) lists of confidential information about Mardi Gras’ nonunion employees, including their “job classifications, departments, and addresses”; (2) use of Mardi Gras’ private property for organizing; and (3) control over Mardi Gras’ communications to nonunion employees regarding unionization . . . . The last provision [of the deal] stated that “[t]he Employer will not do any action nor make any statement that will directly or indirectly state or imply any opposition by the Employer” to unionization or any particular union.
The Obama administration involved itself directly in the case, filing a “friend of the court” brief. While urging the Supreme Court to find that Local 355 had not violated Section 302, Solicitor General Donald Verrilli conceded that “courts generally construe” the term “thing of value” to include “both tangibles and intangibles.” He noted:
Courts have found a wide variety of goods, services, and benefits to be “things of value” within the meaning of the criminal laws.
Mulhall’s brief added that to be a “thing of value” under Section 302, a service or benefit need only be of value to the union officials receiving it. Moreover, each of the neutrality pact provisions at issue has a market value, albeit one it is difficult to assess with any precision, and can be “delivered” to union representatives.
For example, the gag rule provision is legally comparable to one business agreeing with another (assuming the agreement is permissible under antitrust law) not to fight for customers in a particular market, in exchange for some other consideration:
. . . Coca-Cola certainly delivers something of great value to Pepsi if it enters into a noncompetition agreement that bars it from advertising or competing against Pepsi in a particular market.
No ‘successful union organizing’ without employer collusion?
Questioned during November’s Supreme Court hearing on the Mulhall case, UNITE HERE lawyer Richard McCracken had a tough time defending his claim that gag rules, lists of employee names and addresses, and use at no cost of an employer’s facilities are not “things of value” under Section 302. Even Deputy Solicitor General Michael Dreeben, who also appeared before the Court to argue that UNITE HERE bosses had not violated the law, undercut McCracken on this key point when he admitted:
Certainly, read in isolation, the words “thing of value” are very broad. In other statutes, they cover intangibles. We would have no problem treating the things here as things of value under . . . 302 if that’s the only thing that existed.
But Dreeben contended all this shouldn’t matter, because union organizers have a right to seek recognition from an employer as employees’ monopoly-bargaining agent based on signed cards alone, without a secret-ballot election. That’s under NLRA Section 9(a), as interpreted by the Supreme Court in National Labor Relations Board v. Gissel Packing (1969). If the employer acquiesces, union bosses have a right to unionize employees through such “card checks” without a vote.
“Card check” recognition is obviously a thing of value to organized labor, Dreeben noted. Because it is permissible for employers to deliver such recognition to union officials, he claimed, it should also be permissible for employers to deliver to union officials virtually any other kind of organizing assistance, regardless of what Section 302 says.
The administration’s Dreeben and UNITE HERE’s McCracken evidently did not think it prudent to baldly claim, as Sachs of Harvard Law School had in a blog post the day before, that “effective union organizing” in the private-sector today relies on employer collusion in the form of gag rules, lists of information, and use of property. Yet Dreeben made the same point more circumspectly. He suggested the Justices should rule against Mulhall because employers’ “voluntary” recognition of unions through “card checks” is not merely a “permissible” element but a “favored” element of national labor policy.
But that’s wrong. In reality, the Supreme Court in the 1969 Gissel case acknowledged that “secret elections,” not “card checks,” are the “preferred” method “of ascertaining whether a union has majority support.” Therefore, there is no plausible reason to ignore the literal meaning of Section 302 in order to avoid hindering Big Labor from securing monopoly-bargaining privileges through “card checks,” even though “card checks,” with organizing assistance from employers, have become unions’ favored modus operandi.
As the attorney Bill Messenger observed in response to question from Justice Sonia Sotomayor, “nothing gives [UNITE HERE] any right to the three things it demands from Mardi Gras. So enforcing 302 in this case cannot conflict with the NLRA.”
Case #2: Forcing caregivers to join unions
If it comes out wrong, the Supreme Court case of Harris v. Quinn, set to be argued this month, could take the country much further down the road of Big Labor coercion. Or it could go in the other direction, revoking forced-dues privileges that government unions have exercised in many jurisdictions for more than four decades.
The lead plaintiff in Harris lives in a Chicago suburb and is the mother of a young adult son with severe developmental disabilities. In fall 2009, Pam Harris received a form letter from agents of Gov. Pat Quinn (D-Ill.). It informed her that, as a care-provider for her son in the state Disabilities Program, she now could cast a mail-ballot vote on which of two unions would be installed as her monopoly-bargaining agent in her dealings with the state. The letter Harris and several thousand other Disabilities Program providers received did not clearly state that they could opt for no union representation at all.
How did top bosses of the Service Employees International Union (SEIU) and the American Federation of State, County and Municipal Employees (AFSCME) get the opportunity to compete for control of Disabilities Program providers? They owed it all to Executive Order 2009-15, issued by Quinn on June 29, 2009.
Participants in the Illinois Home Based Support Services Program for Mentally Disabled Adults receive taxpayer-funded subsidies from the state to help cover the cost of care. Adults, or their legal guardians, may use their subsidies to compensate care-providers. Executive Order 2009-15 was crafted to enable one union to secure recognition from the state as these providers’ exclusive representative in their dealings with the state, and then to extract forced dues or fees from the providers.
For many years before, Big Labor had wanted to corral taxpayer-subsidized home care providers across Illinois into government unions, but had not been legally able to do so. The courts had held the providers were not public employees, because they are not supervised, hired, or fired by the state.
Quinn’s edict did nothing to change the underlying facts, of course. It simply declared that, even though citizens like Pam Harris aren’t supervised, hired, or fired by the state of Illinois or any of its subdivisions, the fact that they are paid and regulated by the state suffices to justify classifying them as public employees solely for purposes of unionization.
If the schemes concocted by Pat Quinn and other opportunistic Big Labor politicians in multiple states over the past few years—schemes to expand the reach of public-sector monopoly unionism—are constitutionally permissible, the implications are enormous. Doctors who accept patients under Medicare and/or Medicaid could be forced by gubernatorial executive order or state legislation to accept a particular private organization as their lobbying agent. Moreover, doctors could be forced to pay mandatory dues and fees to such an organization. Similarly, impoverished parents who participate in the “food stamp” program could be forced to join or pay fees to a government-designated lobbying agent.
Pam Harris and other care-providers cry halt
Over the course of the rigged Disabilities Program provider “election” in fall 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, SEIU and AFSCME union officers continued to press ahead with their efforts to gain forced-dues privileges over caregivers.
In Harris v. Quinn, Pam Harris and other Disabilities Program providers are seeking relief from these unionization efforts (continued under a program established by Quinn’s predecessor, the now-jailed Gov. Rod Blagojevich). They have been joined by several at-home caregivers who are being forced to pay union dues as a condition of receiving state assistance. Like Martin Mulhall in his case, the plaintiffs in the Harris case are represented before the Supreme Court by Bill Messenger of the Right to Work Foundation.
During oral arguments on January 21, Messenger will ask the Supreme Court to protect his clients from compulsory payments to unions by overturning Abood v. Detroit Board of Education, a 36-year-old case that invoked the “free rider” excuse to force workers into unions. Under this theory, workers who don’t pay forced union dues would get a “free ride” with regard to the benefits of the union’s bargaining and contract administration (benefits unsolicited by the workers, of course). Messenger will respond by citing a recent Foundation-won Supreme Court case, Knox v. SEIU Local 1000, in which Justice Samuel Alito observed in his majority opinion that “free-rider arguments . . . are generally insufficient to overcome First Amendment objections.” Alito added that perhaps Abood had crossed “the limit of what the First Amendment can tolerate.” (For more on Knox v. SEIU, see Labor Watch, Oct. 2012.)
Messenger will also argue that, even should the Court balk at reversing Abood, his clients must not be forced to pay union dues or face the imminent threat of forced-dues payments, because they are not employed in any government workplace. Therefore, there exists not even a theoretical possibility of “labor peace” in the workplace being disrupted by so-called “free riding,” as the Abood opinion had envisioned.
‘First Amendment values are at serious risk’
A Harris ruling that neither revokes Abood’s constitutional waiver for public-sector forced union dues nor finds the plaintiffs outside of Abood’s reach would have very dark implications for personal liberty and the democratic process.
In a November 2011 petition asking the Supreme Court to accept the case, Messenger reminded the Court that, outside the realm of labor-management relations, it has up to now been very reluctant to uphold statutes or executive orders that impose “compulsory advocates” on individual citizens. He quoted the Court’s 2001 ruling in U.S. v. United Foods:
First Amendment values are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors.
In short, Abood blew a hole in the First Amendment, but a victory for the Quinn Administration and Big Labor in Harris would greatly expand that hole and jeopardize the free speech rights of millions of citizens who have been protected up to now.
That’s why, as high as the stakes are in Mulhall, the stakes in Harris appear to be even higher.
Stan Greer is senior research associate for the National Institute for Labor Relations Research, a think tank located in Springfield, Virginia, that is affiliated with the National Right to Work Committee. The opinions presented here are his own. This article originally appeared in Labor Watch, a publication of the Capitol Research Center, and appears here with permission.
California is a forced unionism state, meaning that once a collective bargaining unit is recognized by an employer, it’s pretty hard for any employee to avoid paying union dues. But even in forced unionism states, employees have rights. “National Employee Freedom Week” was initiated in Nevada last year by the Nevada Policy Research Institute, and this year they have been joined by 60 organizations to spread information on employee rights across the U.S.
It isn’t easy to assert your rights as an employee in a unionized workplace, especially in California. Any attempt to limit union involvement typically requires “opt-out” action. That is, an unionized employee will automatically pay all membership dues, including those used to fund political contributions, unless they actively initiate action to assert their rights. In most cases, members are only permitted to take these actions to opt-out during a limited few weeks each year. Members of the California Teachers Association, for example, can only request a rebate of the political portion of their dues between Sept. 1st and November 15th, and they have to resubmit their request every year (more on rights of CTA members here).
Here are two fundamental rights employees of unionized workplaces still have in California, and suggestions on how to exercise those rights:
(1) They can refuse to pay for the union’s political activity. To do this, an employee must request to become an “agency fee payer,” which means they only pay dues for the union’s cost of collective bargaining, contract administration and grievance adjustment. As an agency fee payer, a unionized employee will not have to pay for any other activities, including the union’s political activities.
An agency fee payer is not a member of the union, but since they continue to pay the “representative” portion of their dues, the union must continue to represent them fairly and without discrimination in all matters subject to collective bargaining.
As an agency fee payer, employees are still entitled to every benefit under the labor contract with their employer, including health care, pension, step increases, etc.
A generic letter to become an agency fee payer is here. You will need your union’s address and contact information. We recommend that you make a copy of your letter and either deliver it in person and receive a stamped copy or mail it with Certified Mail Return Receipt Requested Signature. This protects you in case, a union boss “loses” your letter. We also recommend sending a copy of the letter to your employer’s payroll department.
Although the generic agency fee payer letter includes text noting that your objection is continuing and permanent, some unions will not respect this and will make you annually resubmit your refund request.
For a smooth exit, you may have to leave during specific opt-out timeframe or “window.” Ask your union for a copy of your signed enrollment form to determine when your window is.
(2) They can become a religious or conscientious objector.
If you would like to become a religious or conscientious objector, go to ChooseCharity.org and complete a simple application process that requires no additional out-of-pocket costs.
Once the application is submitted, the ChooseCharity legal staff will take care of the rest of the process.
If you become a religious or conscientious objector, your full dues equivalent will be deducted but made payable a charitable fund exempt from taxation under Section 501(c)(3) of Title 26 of the Internal Revenue Code. You will not be a member of the union, but are still entitled to every benefit under the labor contract with your employer, including health care, pension, step increases, etc.
If you think you may want to become a religious or conscientious objector, it is important that you do not request to be an agency fee payer.
Association of American Educators (AAE) – $15 per month membership
Christian Educators Association International (CEAI) – $239 annual membership
More Information About Your Rights
Your Rights (Center for Union Facts)
Unions and Union Dues (American Center for Law and Justice)
Teacher Rights (AAE)
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