“If unions are so good and doing such a great job, why do they have to force people to pay them?” That’s the question Mark Janus, an Illinois child services specialist, posed to assembled reporters on Friday. It’s the Supreme Court who will give him an answer. His case will be heard on Monday.
Janus v. American Federation of State, County and Municipal Employees is a second chance for the court to overturn a 1971 decision, Abood v. Detroit Board of Education, that allowed public sector unions to demand non-members pay a “fair share” fee. Janus’s case hinges on a First Amendment claim of compelled speech, with precedents tied to license plate slogans and saying the Pledge of Allegiance in public schools. The compelled speech argument is this: Union dues fund political activities, far beyond just collective bargaining—and, given that their members are government employees bargaining for taxpayer dollars, public sector unions’ every activity is political. Per this legal logic, even the “fair share” fees required of non-members violate workers’ First Amendment rights.The most recent challenge to Abood on these grounds, a case called Friedrichs v. California Teachers Association, ended in a tieshortly after Justice Scalia’s death in 2016. Then as now, the decision is also an opportunity to make right-to-work regulations the law of the land. After Monday, the public sector union—an institution that Franklin Delano Roosevelt once prominently argued violates the principles of public service—will never be the same. Indeed its transformation, as right-o-ork laws progressed from state to state, has been under way for years.How fitting then, some of us remarked Friday, that Mark Janus share the name of the Roman god with two faces: One looks back into the past, while the other gazes ahead into the future.This Janus—a self-professed political independent, who says his ruling interest is every worker’s right to choose whether he values his union’s representation enough to pay for it—has been looking ahead to Monday’s arguments for years. His petition started in 2015. Similar cases abound. Elizabeth “Bitsy” Galaska, for one—a 54-year-old elementary school librarian from Pennsylvania—has come to Washington to hear Monday’s oral arguments. She filed an amicus brief in support of Janus, knowing her petition hangs in the balance. Galaska, as with her allies on the ground, doesn’t want to hobble the union she elected not to join.
She and her co-dissenters just don’t want to have to pay them themselves.
Evidence suggests success in freeing workers’ rights actually strengthens unions—contrary to the common fear, and the precedential premise of Abood, that making membership in the “collective” no longer mandatory will only inspire “free riders” to reap benefits of collective bargaining without paying in. In Janus’s home state of Illinois, labor statistics suggest union membership has steadily improved when unions have been forced to earn workers’ support. When did these members who’ve mounted such consequential complaints first realize the union wasn’t working for them any longer? If the decision in Janus pans out as it’s expected to, Ron Conwell’s case will come into currency. At stake in his complaint is the rightful implementation of right to work, which was already in place Michigan at the time that Conwell, 50, petitioned for his rights to be upheld.
“There are many teachers who will stand up and say, ‘I don’t think this is right. I should be able to exercise my rights,'” he predicts. But, “I don’t know if they will know” what those rights are, he adds, “Because I didn’t know at the time.” After some research, he emailed the National Right to Work Foundation—but not everyone takes the initiative. Conwell, who spent the first half of his career serving in the military, now leads the computer science department at his school in Michigan. He started there as transportation coordinator after leaving the Army and only volunteered to teach computer science as an emergency substitute in 2001. “As an Army officer for eight years, I was committed to defending the Constitution to ensure the rights of all citizens including my future self,” he explains. “When I came back to civilian life and went in and signed that paperwork to become a teacher, and they said I had no right not to join, that didn’t sit well with me.” Another amicus filer—Ben Johnson, 43—was a college librarian in Vermont and the president of his state’s AFL-CIO and American Federation of Teachers until too many years’ witness of misused worker dues turned him into an advocate for the other side. Johnson tells me a friend he worked with at the AFT often critiques the effect of mandatory “fair-share fees,” or agency fees, on a union’s efficacy—as do many pro-union left-wingers he knows. “The business model is you win a representation election, you get a contract with agency fees in it, then you’re done. It’s only once every three years that workers actually have a choice, even theoretically, to vote the union out.” The rest of the time, their cash flow is “untouchable”—and unions don’t have to work for workers’ support. All sides, he says, are ready to see these unions get back to their full-time job: Representing their workers.
For her part, Galaska, in the midst of Scott Walker’s 2012 referendum election in Wisconsin, did some research. She found her Pennsylvania teachers’ union had contributed to Wisconsin’s public sector union defense fund. “I didn’t have a choice,” she recalls a sense of powerlessness, “whether my dues money would go to Wisconsin.” That powerlessness, she hopes, will be a thing of the past for employees like her. With a teacherly smile, Galaska says, “I’m looking forward to Monday.”
