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Janus Case Pit Individual Rights Against Collective Bargaining

February 27, 2018

Yesterday the Supreme Court heard arguments in the Janus vs. Illinois case, which pits the first amendment rights of an individual employee who receives union benefits against the ability of a union to engage in collective bargaining. As a school superintendent who sat across the table from the NEA in five different states, I felt that the most effective middle ground on this issue was to have the union differentiate their costs for political action from their costs for representing employees and to also differentiate their dues accordingly. This kind of differentiation was deemed acceptable by the US Supreme Court in the 1977 Abood vs. Detroit case, which is summarized in the Encyclopedia Brittanica below:

Abood v. Detroit Board of Education, legal case in which the U.S. Supreme Court on May 23, 1977, ruled unanimously (9–0) that agency-shop (or union-shop) clauses in the collective-bargaining agreements of public-sector unions cannot be used to compel nonunion employees to fund political or ideological activities of the union to which they object. The court nevertheless held, by a 6–3 majority, that nonunion employees in the public sector may be required to fund union activities related to “collective bargaining, contract administration, and grievance adjustment purposes.”

Through the years since 1977, school districts began to bargain for the kind of differentiation described in Abood as states passed enabling legislation that made agency shop a permissive part of bargaining.

Through the years since 1977, the libertarian wing of the GOP has sought to overturn the second half of this ruling by asserting that the First Amendment rights of individual employees should preclude any compulsion to pay any dues. Presumably, the individuals who are filing these cases are indifferent to the collective efforts of their colleagues to raise wages or improve working conditions. In effect, they want their individual perspectives on collectivism to overturn any of the bargaining agreements achieved though bargaining.

According to many articles I’ve read in the past few days, including this one in Education Week, It now appears that the Supreme Court will overturn the requirement that nonunion employees pay anything for union activities, a decision that is likely to undercut the union’s ability to represent their colleagues and, potentially, undermine existing collective bargaining agreements. Here’s the union argument in a nutshell:

David L. Franklin, the solicitor general of Illinois, who was defending Abood along with Frederick, said that the state has an interest “at the end of the day in being able to work with a stable, responsible, independent counterparty” in the unions who will “be a partner with us” in contract negotiations.

But here’s where public sector unionization will ultimately lead, based on Justice Kennedy’s analysis:

Kennedy suggested that also meant that the unions “can be a partner with you in advocating for a greater size workforce, against privatization, against merit promotion, for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, [and] for increasing taxes.”

Based on headlines I’ve read, it seems that the rights of the individual have prevailed. When the case is characterized as pitting unions forcing individuals to pay-to-play as opposed to unions being forced to represent individuals in grievances who fail to support their representatives, the framing favors the libertarian perspective over the collective perspective… and communitarianism loses out to atomization. The irony in all of this is that conservatives who tend to oppose unions simultaneously lament the loss of communitarianism. But at the same time, conservatives tend to favor the marketplace over any form of collective employee rights. In short, it appears that conservatives support collective efforts so long as they do not require increased cost to taxpayers or diminishment of the shareholders profits…. and the economic divide we experience now is the result.

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