Supreme Court to Decide Whether Public Employee Union Free-Loaders Pay ‘Fair Share’ in Janus Case

by on May 21, 2018 · 0 comments

in Labor

This first appeared at San Diego Free Press

By Peter Zschiesche

The U.S. Supreme Court will soon decide the “Janus Case” and determine the legality of state laws that allow public employee union contracts to require all covered employees to pay at least a “fair share” fee to cover the union’s cost of negotiating and enforcing their agreement. There are 23 states that have such laws and California is one of them.

In 1977 the Supreme Court decided unanimously that yes, states could do that. But just a few years ago several of the current conservative Supreme Court Justices let it be known that they would be willing to revisit that 1977 decision. So the Janus case worked its way up the legal system. Now the Supreme Court has heard the Janus case and will announce their decision in the coming months.

It is no news to most readers of the OB Rag / San Diego Free Press that there are powerful forces in our country that are opposed to employee unions. The Janus case reflects the continual struggle for power and influence in our democracy. Unions, which bring democracy to our workplaces, are part of that struggle.

At their core, unions are the organized expression of workers’ voices in their workplaces and in their communities. You may or may not agree with their politics, but they reflect workers’ rights to association (organizing in groups) and free speech (voicing their concerns). Union members who disagree get to say so and elect different union leaders if they choose to do so. I did that in my union.

At work, unions represent employees’ need for better wages, benefits and working conditions. They work to negotiate contracts that reflect those needs. For public employees, the employer is a government agency – city, county, state, school district, fire district, etc. But public employer or private employer, these agreements look a lot alike and so does the bargaining unions do to get them.

What happens if the Supreme Court majority rules that employees of public agencies who are represented by unions can no longer be required to pay a “fair share” fee to their unions? Will they still pay that fee? Unions’ experience is that some will pay, and others will stop paying but still enjoy all their benefits and protections of the union contract for free. They would become “free riders”.

Is this fair? How are public sector unions expected to cover the costs of the contract if not everyone chooses to pay at least their legally-determined “fair share” fee? Do they still represent these folks? Do the negotiated wages, benefits and working conditions still apply to them? Do those who don’t pay anything get to bargain separately for their own wages, benefits, and working conditions?

Some of those who choose not to pay may say they cannot afford it, but, in fact, they have paid dues or fees before. So, it more likely means now they want to get something for nothing – don’t we all sometimes? In this case, that desire harms all their fellow employees because their non-payment of dues or fees means that the union will have fewer resources to make sure that workers’ voices are well-organized for negotiations and that union staff can enforce the contract effectively. Their personal selfishness will weaken the union that others rely on for their well-being at work. Adapting a long-standing union saying, each free-rider creates an “injury by one” that will result in “an injury to all.”

Every government agency employs or has access to professional staff whose job is to manage their employee relations and to attorneys who know the laws and how to use them to the employer’s advantage. Knowing this, what employee would want to disarm their union by not paying their “fair share” fee and then face the employer’s professionals weakened or alone regarding unfair treatment, pay disputes, or other disagreements? Or do they plan to never be mistreated or complain? Good luck.

Others will say that they don’t agree with some of what the union does. But unions are democratic organizations with elections, bylaws, and constitutions. Free riders, like fair share fee payers, choose to not pay full union dues and be union members. They give up the rights of union members to elect their leaders, vote on their contract, or engage in union governance. As non-members, they also choose not to have their disagreeing (or agreeing) voices heard within the union. Why not be union and speak out?

Still, others will say they don’t get anything from the union contract and that they can do better negotiating for themselves. The fact is that their employer, the public agency, has chosen to recognize the union as the “exclusive bargaining representative” and, therefore, cannot legally bargain with individual employees. And why would they? It would be so much more work to bargain with and make deals with individual employees and keep track of all those agreements. This reasoning is usually expressed by individual employees with a false sense of their own power at work and poor understanding of their situation.

The problem is that none of this reality is being discussed in the Janus case. Maybe it would be lost on those nine justices because they have little experience with unions and cannot easily appreciate their importance to the well-being of represented employees. For many of the justices this reality may be irrelevant because they are well-schooled in the ideological arguments of anti-union organizations. And some of them cite other political concerns, such as the exercise of individuals’ free speech rights.

In fact, the Janus folks use a free speech argument to fight “fair share” fees for public employees. They argue that their individual free speech is violated because they disagree with their union’s activities and argue that public union activity is “political” speech not only when unions lobby the government but also when they bargain for a contract. Anyone involved in union bargaining can tell you this argument is not true. Public sector bargaining looks much like bargaining with private companies – employees’ pay and benefits, fairness in work rules, and a just system of discipline. That’s not politics.

What about Mr. Janus’ free speech rights? No employees enjoy full free speech rights as private citizens when at work. All employees’ workplace speech is subject to work rules against insubordination, harassing speech, improper emails, etc. If free-riders are disciplined by the employer for speech that the employer thinks is prohibited, who is going to defend those free-riders against punishment or even termination? That is still the obligation of the union to whom the free-riders refuse to pay a “fair share” fee. For those anti-union organizations arguing this case, bleeding public sector unions dry is their goal.

The organized opposition to unions has honed its arguments for decades and created its own legal framework that attacks all unions, public and private. Free speech? It’s just a ruse. But with this argument in our Supreme Court, they hope to create free-riders who are fooled into weakening the only organization that can advocate for them at work, their unions. Never take what you have for granted.

Peter Zschiesche is a former Machinist Union Business Agent and President of IAM Local 389. Over the past 30 years, he has worked with the last 5 leaders of the San Diego Labor Council and served on its Executive Boards with 3 of them. He founded the Employee Rights Center in 1999, retired from there, and remains active on its governing body, Labor’s Alliance. He also serves as a Trustee of the Board for the San Diego Community College Board since 2002.

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