As noted in Part I of this discussion, the Supreme Court of the United States now has before it the case captioned Janus v. AFSCME,  the latest iteration of a 70-year long war over “closed shops,” “open shops,” and “agency shops.”

In the words of Adam Liptak of The New York Times, “the court will consider whether public-sector unions may require workers who are not members to help pay for collective bargaining.”

Since the public sector unions could not do this without the contractual connivance of their public sector employers, and since at least some of what unions do is expressive activity, it seems on its face plausible that such a requirement raises first amendment issues, forcing certain “speech” from dissident non-union employees in the shop.

The named petitioner, Mark Janus, is a child support specialist who works at the Illinois Department of Healthcare and Family Services. Janus has received assistance from the National Right to Work Legal Defense Foundation.

Reuters’ report on the case quotes NRTWLDF’s president, Mark Mix, saying, “We are now one step closer to freeing over 5 million public-sector teachers, police officers, firefighters and other employees from the injustice of being forced to subsidize a union as a condition of working for their own government.”

Right Wing View  

The “right to work” cause is certainly considered on the “right” in the U.S. political lexicon. In the words of Twittersphere denizen BlackPilledPete, allowing closed shops, or even allowing agency shops (with less than full membership but still, with dues at some level required for all people in the bargaining unit)  “[forces] unionization, literally requiring people to tithe to the Democratic Party in order to earn a living.”  

In the Abood decision in 1977, the U.S. Supreme Court found (as amici in one of the many briefs submitted to the Supreme Court in the Janus matter phrased it) that governments have an interest in labor peace and in preventing free-riding from undermining the mechanism of collective bargaining, where they believe collective bargaining is the route to labor peace. Thus, the court said that it is constitutional to require a public service employee to help fund the union that engages in that bargaining.

Also in the Abood case, the court said that it is not constitutional for the employee to be required to fund the unions’ strictly political activities.

Another amicus brief, this one from the Center for Constitutional Jurisprudence, the litigation arm of an important conservative think tank, the Claremont Institute, expresses well the conservative case for the proposition that the Abood distinction cannot stand, that all agency fees should be probited in the public union context.  For public unions, the whole point of bargaining is to re-allocate public resources, especially though not solely tax money. Everything the unions do, then, is political. The core bargaining function, or even the clerical functions that support such bargaining, are as much political expression as is financing candidates for public office.

Indeed, the Claremont brief quotes Justice Hugo Black, often cited as a figure of the Left, who said in 1961, “I can think of few plainer, more direct abridgements of the freedoms of the First Amendment than to compel persons to support candidates, parties, ideologies, or causes that they are against.”  A dissident public employee in a particular bargaining unit should not be forced to support the “cause” of getting himself more money at the expense of taxpayers.

Left Wing View

Meanwhile, in a blow to unions at the state level, a Wisconsin appeals court has approved that state’s new right-to-work law, essentially prohibiting agency shops there. A lower court had overturned the law, on the theory that it amounts to a taking of union property without just compensation.  The appeals court has now rejected that theory, saying, “Unions have no constitutional entitlement to the fees of non-union employees,” and the law stands.

This, too, is grist for the Twittersphere.

The left wing or pro-union or pro-agency-shop cause gets support from north of the border, though. In negotiations over a revision of the North American Free Trade Agreement, Canada’s Prime Minister Justin Trudeau takes the view that it is unfair for the United States to allow its states to have right-to-work laws, which after all make the U.S. a lower-cost cheap-labor competititor to Canadian firms.

Most leftward authors writing on this issue offer variations of the basic argument that non-union-members should not be allowed to free ride off of the union members and their efforts. This argument was well put recently by Tim Worstall in Forbes. He also says that the best economic solution is simply to “insist that union negotiated contracts only apply to members in good standing of the union. Those who don’t want to pay the extra fees need not, but they’re also left with whatever contract they can negotiate individually, collectively in other manners if they wish, or whatever contract the employer wishes to offer them.”