WASHINGTON, D.C. – By this time next year every government worker in America could be free from forced union dues if a National Right to Work Legal Defense Foundation lawsuit for an Illinois state employee is successful.

Mark Janus, a state-employed child support specialist, seeks a ruling that forcing government employees to pay money to union officials to keep their jobs violates the First Amendment.

In June, staff attorneys from the National Right to Work Foundation and Liberty Justice Center filed a writ of certiorari petition with the United States Supreme Court, asking the Court to hear Janus v. AFSCME. If the Court agrees in September to take the case, a ruling would be likely by June 2018.

“Requiring public servants to subsidize union officials’ speech is incompatible with the First Amendment. This petition asks the Supreme Court to take up this case and revisit a nearly half-century-old mistake that led to an anomaly in First Amendment jurisprudence,” National Right to Work Foundation President Mark Mix commented.

The Janus v. AFSCME case stems from Obama Labor Board Majority an executive order issued by Illinois Governor Bruce Rauner on February 9, 2015. It prohibited state agencies from requiring nonmember state employees to pay union fees, and directed that such the resolution of litigation. On the same day, Rauner filed a federal lawsuit in the U.S. District Court for the Northern District of Illinois asking for a declaratory judgment that the forced fee provisions violate the First Amendment and that his executive order was valid.

In March 2015, staff attorneys from the Foundation and the Liberty Justice Center moved for Mark Janus to intervene in the case. Janus’ complaint requested not only a declaratory judgment but also an injunction and damages from the unions for the compelled fees. The court granted Janus’ motion to intervene which allowed the suit to continue to move forward even after the court ruled that Governor Rauner lacked the standing to pursue the lawsuit.

On July 2, 2015, the Illinois Attorney General asked the district court to stay the case pending the Supreme Court’s decision in a case with similar constitutional issues at stake, Friedrichs v. California Teachers Association.

The Supreme Court ultimately deadlocked 4-4 on Friedrichs, following Justice Scalia’s death, allowing the 1977 Abood v. Detroit Board of Education precedent to stand for the time being. In Abood, the Court held that, although union officials could not constitutionally spend objectors’ funds for some political and ideological activities, unions could require fees to subsidize collective bargaining and contract administration with government employers.

Soon after the deadlock in Friedrichs, a district court judge dismissed Janus, allowing the case to be appealed to the Seventh Circuit. The Seventh Circuit affirmed dismissal, citing Abood, thus allowing Janus to be petitioned to the Supreme Court.

Janus follows a series of Foundation-won Supreme Court decisions that demonstrate a willingness by the Supreme Court to reconsider Abood and apply strict scrutiny to the constitutionality of forced union fees.

In Knox v. SEIU, brought by Foundation staff attorneys for California employees, the Supreme Court began to question Abood’s underpinnings. The Court in 2012 held in Knox that union officials must obtain affirmative consent from workers before using workers’ forced union fees for special assessments or dues increases that include union politicking.

The opinion Justice Samuel Alito authored left the door open to challenge all forced union fees as a violation of the First Amendment. Alito wrote that previous Supreme Court rulings allowing forced fees “have substantially impinged upon the First Amendment rights of nonmembers.”

The Foundation also assisted a group of Illinois home care providers in challenging a state scheme authorizing Service Employees International Union officials to require the providers to pay union dues or fees. Foundation attorneys took the case, Harris v. Quinn, to the Supreme Court, which held in 2014 that the forced-dues requirement violated the First Amendment.

In the Court’s opinion in Harris, Justice Alito expanded his criticism of forced union fees writing, “Except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Janus v. AFSCME is on track for the Supreme Court to decide whether to hear it at its conference before the next term begins in the fall. If four justices agree, the Court could announce soon after its September 25 conference whether it will hear the case.

Foundation staff attorneys also filed another federal lawsuit seeking to end union bosses’ forced-dues powers to demand union fees as a condition of employment. The case, Keller v. Shorba, was filed for two Minnesota state employees. These employees, Carrie Keller and Elizabeth Zeien, are employed by the State of Minnesota Court System. When they started working for the State, neither was a union member, and they both negotiated their own terms and conditions of employment and salaries, free from union interference.

In 2015, union officials started proceedings to force state employees who were not in monopoly bargaining units into union ranks, where they could be required to pay union dues and fees. In March 2017, Minnesota state officials bowed to the Teamsters’ demands and added a number of employees, including Keller and Zeien, to a Teamsters-controlled bargaining unit without the employees’ permission or desire. Keller, Zeien, and the other employees were never given a vote on whether they should be part of the union bargaining unit, and they objected to the new scheme.

Before being forced under the union contract, Keller and Zeien had negotiated pay scales and benefits for themselves that equaled or exceeded what they are forced to accept under the union-mandated
contract. The lower compensation under the union contract and the imposition of mandatory union fees led Keller and Zeien to approach the Foundation for assistance in challenging the forced unionization scheme.

“These two workers were happily working and successfully representing themselves in dealing with their employer until Teamsters officials sought to bolster their forced-dues ranks even though it meant a step back in Keller and Zeien’s working conditions,” said Ray LaJeunesse, Vice President and Legal Director of the National Right to Work Foundation. “This case is a prime example of why it is wrong to force employees to pay money to a union for representation they don’t want, never asked for, and frequently would be better off without.”

Keller and Zeien’s case is one of six ongoing challenges, in addition to Janus, brought by Foundation staff attorneys across the country challenging the constitutionality of forced union fees.

Posted on Aug 11, 2017 in Newsletter Articles