In the Courts: Gov Requires Free Representation for Non-Members
Do public sector unions owe a duty of fair representation?

Challenges to Unions in the Courts
Gov Requires Free Representation for Non-Members
It is the employment conditions negotiated by the union and the employer that attract highly educated and skilled workers to public service. 

Robert Bruno
Robert Bruno is a professor in the School of Labor and Employment Relations at the University of Illinois at Urbana-Champaign
Chicago Sun-Times, Feb. 1, 2018

The labor movement is bracing for a decision by the U.S. Supreme Court in a case that not only threatens to erode the ability of unions to protect workers against abusive employer practices, but also perpetuates the rhetoric that individuals “are forced” to join a union.

Under Illinois law, public sector unions owe a duty of fair representation to members of a bargaining unit where the union has been elected by the workers to represent them. Workers in this situation are entitled to union representation regardless of whether they are actually members of the union.

However, the Illinois Public Labor Relations Act also provides that unions and governmental employers can, and often do, negotiate a “union security clause” that authorizes non-union members to pay agency fees for “wages, hours and other conditions of employment.” As a consequence, members of a bargaining unit do not have to join the union that represents them for purposes of collective bargaining, but they do have to pay for that representation.

Since the 1977 Abood v. Detroit Board of Education decision, the Court has prohibited the union from using the fees from nonmembers for customary political causes like lobbying and campaign donations.

Now, in a case that originated in Illinois — Janus v. American Federation of State, County, and Municipal Employees, Council 31 — the Supreme Court is considering whether nonunion workers in unionized public sector workplaces have a constitutional free speech right to refuse to pay anything for the benefits and services they are entitled to receive from the union contract.

Despite never objecting to a decade’s worth of union-negotiated gains, the petitioner, Mark Janus, an Illinois nonunion state employee, opposes paying the fee. The essence of his argument is that everything the union bargains for is inherently political and, therefore, it is a First Amendment free speech violation to compel him to pay for political activity.

In effect, Janus would have the Court hold that the right of a worker to take a bathroom break is indistinguishable from compelling her to speak out in favor of abortion. It’s an equivalency that the court should reject.

Most collective-bargaining topics are either economic in nature or mundane conditions of employment. For example, along with wages and health care, AFSCME negotiates career advancement, overtime usage, grievance and arbitration procedures, eligibility for paid time-off (such as holidays and sick leave), safety and protective equipment, disciplinary procedures, labor-management committees, job security, lunch-breaks, parking, personal grooming and bereavement leave.

Additionally, like any private firm, the government has a strong interest in hiring and retaining talented employees. Public employees literally protect the state’s assets. It is the employment conditions negotiated by the union and the employer that attract highly educated and skilled workers to public service. For example, almost 52 percent of state and local government workers hold a bachelor’s degree compared to fewer than one-third of private sector workers.

Wages, benefits and other employment conditions make up the granular quality that defines the contours of a working life. But none of it is remotely political. Not unless we distort the word “political” to mean anything that influences power relations in society. By that standard, being born black or female is a political act that warrants government scrutiny.

The focus on union activities meant to produce economic gains for workers originates in the arguments made for passing the 1935 National Labor Relations Act. Members of Congress spoke passionately about allowing workers to create a workplace countervailing power that would prevent the extreme income inequality and abuses that were the cause of massive strikes.

“When employees are denied the freedom to act in concert,” stated the law’s author, Sen. Robert Wagner of New York, “they cannot participate in our national endeavor to coordinate production and purchasing power. The consequences are already visible in the widening gap between wages and profits. If these consequences are allowed to produce their full harvest, the whole country will suffer from a new economic decline.”

What was true for private sector workers in 1935 and affirmed by the Court’s 1977 Abood decision remains true for public sector workers today. While the need for fiscal appropriations mean that some economic matters in labor agreements are of relevance to the public interest, that does not make them forms of citizen speech.

Robert Bruno is a professor in the School of Labor and Employment Relations at the University of Illinois at Urbana-Champaign
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