The Supreme Court could deliver an enormous victory for workplace freedom and the First Amendment in the coming days with its decision in Janus v. AFSCME.
A Janus victory could give every public employee in the U.S. right-to-work protections, meaning they could opt out of all union dues and fees – a monumental shift in the labor landscape. However, in many respects, it would be the beginning, rather than the end, of legal and legislative questions about worker-union relations.
For example, one of the primary union complaints against right-to-work is the so-called “free rider” problem of representing workers who don’t pay for collective bargaining costs. While this complaint ignores the fact that workers like Mark Janus never wanted the union speaking for them to begin with, making them forced riders rather than free riders, it also raises an important question: Why can’t workers who opt out represent themselves, and unions represent paying members only?
While some unions do represent members only, it is extremely rare. The National Labor Relations Act authorizes unions with majority support to exclusively represent all workers, but it does not require them to do so. Most unions choose to represent all workers to increase bargaining leverage and resist the ability of workers to represent themselves. For instance, unions recently opposed “worker’s choice” bills in Michigan, Missouri, and Oklahoma that would have codified that right.
But with the spread of right-to-work, that could soon change. Unions could change their tune on “worker’s choice,” or even launch legal pursuits of their own to get out of representing non-members, as one Illinois union did this year.
A Janus victory would also open up questions about constraints on exercising right-to-work protections. Currently, unions in many states make it extremely difficult to do so. One way is by limiting the period in which leaving the union is allowed — in some cases as little as 10 days a year. If the Supreme Court confirms that opting out of union dues and fees is a constitutionally protected right, can unions and politicians place arbitrary limitations on when workers can do so? The Michigan Supreme Court already said “no” following that state’s right-to-work law, and similar challenges are likely to be raised if Janus wins.
Then, there is the question of “opting out” at all. Should the default be that dues are automatically deducted for union political advocacy, so workers who do not wish to fund such advocacy are forced to jump through hurdles to have those dues refunded? Or should unions need to receive permission from workers before deducting dues for political causes, so those who do wish to support union politics must actively opt in?
This question is becoming increasingly important as unions focus more of their resources on politics. For example, earlier this week the SEIU, the nation’s largest union, followed the American Federation of Teachers in scrapping its health and safety program, while continuing to spend tens of millions of dollars on political causes and candidates – essentially exchanging a program dedicated to a core function of labor unions, protecting workers’ health and safety, in order to redirect their resources to politics.
Some states, like Missouri earlier this year, have passed “paycheck protection” laws requiring that unions receive permission from workers before deducting dues for political causes. In addition, a lawsuit similar to Janus v. AFSCME called Yohn v. California Teachers Association asks this same question, challenging the constitutionality of the “opt-out” status quo.
Finally, another budding legislative trend that may escalate further following a Janus victory is union recertification. Currently, once a union is voted into a workplace, it basically remains forever, never standing for re-election regardless of workforce turnover. As such, more than 90 percent of unionized workers have never actually voted for the union that represents them.
Four states (Wisconsin, Florida, Iowa, and Missouri) have enacted laws requiring that all or some government unions stand for recertification elections to ensure that they remain accountable to the workers they represent today, rather than the ones who voted them in decades ago. If many workers leave their union following a favorable decision in Janus, calls for such reforms may increase – especially bills like HB 7055 in Florida, which requires teachers’ unions to restart the certification process if less than 50 percent of the bargaining unit are dues-paying members.
American workers do not want to be pawns in a political agenda. They want the freedom and flexibility to negotiate contracts that work for them, and if they wish to be union members, they want accountable unions that represent their best interests. For too long, the labor law status quo has not empowered these basic desires. Janus v. AFSCME could be an enormous step in the right direction, and could also open the door to several more such victories for common-sense workplace freedoms.
Akash Chougule (@AkashJC) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is the director of policy at Americans for Prosperity.
