By Matthew Hayward
Thanks to the
U.S. Supreme Court’s 2018 ruling in Janus
v. AFSCME, public employees can no longer be fired for refusing to pay their designated labor union dues . Unfortunately, state laws often still require them
to remain in a relationship with a union even though they’re no longer members or
paying dues.
In a genuine sense, this is like the government granting an abused spouse a divorce but
ordering him or her to remain with their abuser.
The court
recognized in Janus that forced union
membership or dues is a violation of the worker’s First Amendment rights to
free speech and association. But by any logical interpretation of the ruling,
it also bans forced representation.
So-called
“union security clauses,” which stipulate that a union must represent every
employee in its bargaining unit — even nonmembers — are routinely inserted into
state law or the collective bargaining agreement between a governmental jurisdiction
and the union claiming to represent the employees working for it.
And unions
are fond of citing such provisions to justify confiscating dues
from every employee in the workplace rather than simply those who willingly pay
dues. Because the union is “required” to bargain on behalf of every worker, or
so the argument goes, those who benefit from the resulting contract but haven’t
helped to pay the negotiators for their effort will have been handed something
for nothing.
The
justices in Janus, however, rejected this
reasoning on several grounds. First, it isn’t up to the giver to determine what
is or isn’t a benefit. That privilege belongs to the recipient — in this case,
the worker.
If he or
she believes union representation is beneficial, they’re free to pay for it.
But if not, they can’t be forced to.
Perhaps
more fundamentally, the court recognized that even negotiating
a contract is inherently an exercise in political speech when it involves
elected leaders and public employees haggling over the taxpayers’ money.
And if
political speech can’t be compelled, neither can the dues dollars that pay for
it.
In a legal
sense, forced representation is just as unconstitutional as forced dues or union
membership. And the practice is even less justifiable on practical grounds.
Forced representation,
for example, provides the very union from whom the worker has just obtained a
divorce with access to his or her personal contact information, which it then uses
to harass him or her into resuming the relationship.
Can you
imagine the outrage if a wife asked for a divorce from her abusive husband, only
to be ordered by the court to meet regularly and receive counseling from him?
Not only
is it impossible for these public employees to prevent the union from
contacting them, but the state actually requires it.
In the
case of SEIU 775, which has been granted a monopoly over the representation
rights of Washington state’s individual homecare providers, even workers who’ve
opted out of the membership and are no longer paying dues are required by the state
to obtain training offered only by SEIU in order to maintain their
certification.
Preventing
public employees who’ve left their union from negotiating their contract
with the state, violating their privacy rights by granting unions access to
their personal information, and forcing them to endure coercive union solicitations
are just as unconstitutional and harmful as compelling them to pay union dues.
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