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Overturning ‘fair share’ union fees would restore balance

Many public employees object to union policies. The Supreme Court is in a position to overturn a requirement of “fair share” fees. 

This op-ed originally appeared in the Star Tribune on June 21, 2018.

Minnesota law requires public employees to fund unions even when they are not a member and they object to union policies. Once certified, unions get the revenue just for showing up; the state even collects the dues, at no charge. What would happen if public-sector unions like Education Minnesota had to earn revenue from teachers and other public employees? We may soon find out.

The U.S. Supreme Court is poised to decide Janus vs. AFSCME by the end of June. Mark Janus, a child-support specialist for the state of Illinois, is asking the court to overturn a decision it made more than 40 years ago that endorsed forcing public employees to pay “fair share” fees to cover the costs of collective bargaining (Abood vs. Detroit Board of Education). In Minnesota, that “fair share” is about 85 percent of full dues.

Janus is asking the court to restore his First Amendment rights by overturning Abood. The legal argument is simple and compelling: All public-sector collective bargaining is political because it directly affects taxes, spending and the policies of government.

“I don’t see my union working totally for the good of Illinois government. For years it supported candidates who put Illinois into its current budget and pension crisis. Government unions have pushed for government spending that made the state’s fiscal situation worse. How is that good for the people of the state?” Janus wrote in the Chicago Tribune. “The union voice is not my voice. The union’s fight is not my fight. But a piece of my paycheck every week still goes to the union … And I shouldn’t be forced to pay money to a union if I don’t think it does a good job representing my interests.”

Like Janus, many of Minnesota’s public employees object to union policies, which lean hard to the left. For example, about 40 percent of teachers identify as conservative or libertarian.

The court in Abood agreed that the First Amendment prohibits public employees from being forced to join the union, or to pay for political expenditures but upheld the legality of “agency shop” laws. Minnesota is one of 22 agency shop states, and it is the only state in the Upper Midwest to force public employees to fund unions.

Here is Justice Potter Stewart: “For at the heart of the First Amendment is the notion that an individual should be free … rather than coerced by the State. … These principles … prohibit the [state] from requiring [public employees] to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher.”

That is where the court should have stopped. Instead, it carved out an exception to avoid giving employees a “free ride,” ignoring the fact that unions demanded the right to be the exclusive agent in a workplace, thus creating the “free rider” problem. It also ignored the possibility that employees are fully capable of negotiating their own terms, something most adults do. The court even admitted that forced agency fees were an “impingement upon associational freedom” but justified downgrading the civil rights of employees in the name of “labor peace.” Let’s see how that decision has played out.

Here are some examples of what Education Minnesota, with annual revenue around $60 million, claims as collective bargaining activities:

  • Conducted the Minority Leadership Training Program and Women’s Leadership Training Program.
  • Provided diversity, social justice, LGBTQ, bullying, sexual harassment, cultural competency, and ELL training to assist Association, leaders, and members.
  • Coordinated the engagement of Human and Civil Rights State Coordinators to support greater connection to the human and civil rights and social economic justice work occurring at the national, state, and local level(Total charges: $763,176)

(Total charges: $763,176.)

The Abood decision sanctioned a massive transfer of wealth, with no accountability, from the paychecks of public employees into the coffers of unions, which quickly became a formidable and well-funded political machine.

That machine has warped the electoral and legislative process for almost half a century, making us feel more divided than we really are. Government unions are a major player in determining who runs for office and who wins. Unions try to elect who they will bargain with, so they can sit on both sides of the table. The relationship between government and public unions has grown too cozy. That is not good for employees, taxpayers or public policy.

If the court finds for Janus, in the short term we could see increased labor unrest, but over time, as unions and elected officials adjust to a restored constitutional order, our public sector should be more, not less, civil. A Janus win could usher in a new era of labor peace and a healthier public-sector unionism as leaders get focused on employees as customers instead of taking them, and their money, for granted.

Kim Crockett is vice president and senior policy fellow at the Center of the American Experiment.

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