Thursday, September 28, 2017

Right to Work Question May Be Headed to Closure

The right to work debate, while not new in this country, has burned a little brighter recently among states, local governments and in the federal courts. Proponents of both sides of the controversy, which centers around whether employees who choose not to join a union must nevertheless pay fair share dues to the union if they are in unionized job titles, looked for a Supreme Court ruling last years in the case of Friedrichs v. California Teachers Association. The death of Justice Scalia resulted in a 4 – 4 split on the court, resulting in the lower court decision standing.

This week the Supreme Court is considering whether it will hear the case of Janus v. AFSCME, a case out of Illinois, which raises the same issues as Friedrichs did as to whether forcing public employees to pay fair share dues denies them their constitutional rights by requiring them to pay money to unions who use part of those funds to advance the union’s political agenda, which may differ from their own political ideals. With the newly constituted court, many predict a decision that will overturn the decades old Abood case which secured the right for unions to collect dues even from employees who definitively chose not to join the union. Labor unions have always argued that they negotiate and protect non-union members in the same job titles as their actual members in the course of their representation and those non-members should pay their “fair share” of the cost and benefit of that representation.

The right to work initiative has taken on new life in recent years, with about half of the states having legislation on the subject. Last week a state appeals court in Wisconsin ruled on a 2015 amendment which provides in part as follows:

No person may require, as a condition of obtaining or continuing employment, an individual to do any of the following:
  1. Refrain or resign from membership in, voluntary affiliation with, or voluntary financial support of a labor organization.
  2. Become or remain a member of a labor organization.
  3. Pay any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value, to a labor organization.
  4. Pay to any 3rd party an amount that is in place of, equivalent to, or any portion of dues, fees, assessments, or other charges or expenses required of members of, or employees represented by, a labor organization.

A number of labor unions filed a state court suit, alleging that this amounted to an unconstitutional taking by the government from the unions. According to the unions, they have a duty of fair representation, thereby requiring them to represent the interests of non-members in the same job titles as their members. By disallowing unions to charge for that service, the government has violated the state constitution by prohibiting them from charging for their services to non-union members, thereby depriving them of money.

The trial court ruled in favor of the labor unions, but the appellate court reversed. It held that the legislation did not actually take away property (money) from labor unions, it only prohibited fair share dues as a condition of employment in the state. The decision was a big victory for Wisconsin Governor Scott Walker who has gained significant popularity on his aggressive initiatives to limit the power of unions in the state’s workplaces.

The Janus case, which the Supreme Court will decide whether to hear, is an appeal from the 7th Circuit Court of Appeals here in Illinois. That same court has also upheld the federal constitutionality of right to work legislation in Indiana and Wisconsin.