Don Pesci: Supremes' union ruling pays homage to the First Amendment

Inscription of the First Amendment  in front of Independence Hall, in Philadelphia.

Inscription of the First Amendment  in front of Independence Hall, in Philadelphia.

"To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.''

-– Thomas Jefferson

The sentiment above is to be found in an Act for Establishing Religious Freedom, a bill drawn up by Thomas Jefferson as part of the Revised Code of Virginia laws, but the sentiment might easily apply to Janus vs. AFSCME, a decision presented this week by the U.S. Supreme Court.

In Janus, the high court reversed an earlier decision in Abood v. Detroit Board of Education. The court made a distinction in that case between forced payments used for political activities, which the court found violated First Amendment rights of free speech, and fees used for such conventional union work as collective bargaining, contract administration and the representation of workers in grievance processes which, the court declared, did not hurt First Amendment rights.

Justice Potter Stewart echoed Jefferson in the majority opinion: “To compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests.” But, Potter argued, the forcible collection of dues from public workers used for “conventional union activity” is “constitutionally justified” to ensure “labor peace” and to thwart “free riders.”

Sardonically, Janus’s lawyers noted in their brief that Potter denominated “free riders” would be, were Abood to remain unchallenged, compelled free riders.

The Supreme Court had been inching towards a reversal of Abood in other cases. “Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, the compulsory fees constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights,” Justice Samuel A. Alito Jr., a Republican, wrote for the majority in a related case in 2012.

Alito, it must be admitted, had a point. In Connecticut, union contracts arranged between a union- friendly governor such as Dannel Malloy, a Democrat, and SEBAC, the union conglomerate that engorges itself on taxpayers' “contributions,” affect the whole body politic, not only the non-union member who may in some cases be forced, in Jefferson’s timeless formulation, to contribute “money for the propagation of opinions which he disbelieves.” In what sense, the Janus court queried, is collective bargaining and the creation of public employee contracts NOT political? Short answer: in NO case.

In Janus, the court threw out the dirty bathwater, the Abood decision with its tendentious distinctions, and saved the constitutional baby. When freedom of choice is mixed with the contributions of fees given freely by free men and free women, we get Jeffersonian freedom, in which the private wills of individuals are not throttled by unions in league with politicians and courts.

“A ruling against public unions,” The New York Times helpfully explains,” is unlikely to have a direct impact on unionized employees of private businesses, because the First Amendment restricts government action and not private conduct. But unions now represent only 6.5 percent of private sector employees, down from the upper teens in the early 1980s, and most of the labor movement’s strength these days is in the public sector.”

The Janus decision will likely reduce “contributions” muscled from state workers who do not wish to contribute to the ruin of state government. For all practical purposes, public-employee unions have become Connecticut’s fourth branch of government. In his most recent contract negotiations with SEBAC, Malloy stretched contractual agreements highly favorable to unions well beyond the end of his term in office to 2017; the contracts contain a provision that will not allow a future governor pursuing spending cuts to lay off workers until the contract has elapsed, and the contract provides automatic salary increases of 3 percent for public union workers after two years.

In addition to all these benefits, agreements between towns and municipal unions in Connecticut provide that town employees, some of whom are not unionized, should perform costly administrative work for unions.

A "Contractual Agreement, Between The Town of Manchester, Connecticut and Municipal Employees’ Union, Local 991, Council #4, AFSCME, AFL-CIO, July 1, 2016 - June 30, 2019” is typical. The agreement specifies that town government, not the unions, are responsible for deducting “membership dues, initiation fees, and reinstatement fees as may be fixed by the Union from the pay of those employees who, individually and in writing, authorize such deductions… Deductions shall be made each month and shall be remitted to the Financial Officer of the Union not later than the last day of said month. The monthly remittances to the Union will be accompanied with a list of names of employees from whose wages such deductions have been made and the amount deducted from each employee.”

Unions impassively, without expending labor or costs, simply receive payments from a municipal administrative apparatus whose salaries are paid by town taxpayers, thus reducing the administrative costs of unions. Not bad non-work if you can get it.

The court’s decision in Janus cuts to the constitutional quick. It declares in proper legal language that there is little difference between preventing free speech and compelling state employees to unwillingly finance union affairs costly to taxpayers – are we not constantly reminded by union propaganda that state workers are taxpayers too?  -- and messaging with which they may disagree. Before Janus, state workers, forced unwillingly to pay for union operations, could opt-out of paying fees devoted to campaign funding only. Post Janus, state workers must willingly opt-in before union leaders may receive fees passed along to them by municipal employees who perform administrative work that should be done by unions.

Unions no doubt will experience a loss of revenue from some workers who previously were forced to contribute funds to powerful, politically connected unions. However, in a free society – i.e., one in which people are not compelled to “furnish contributions of money for the propagation of opinions” with which they disagree, we should choose to take our stand with Jefferson and First Amendment rights. Is it not an irony of ironies that the bill drawn up by Jefferson was specifically designed to prevent state government from collecting fees and taxes from non-preferred religious denominations to support a state established church?

Unions have become something of a religion for progressive politicians who favor particular worker sects. To all this nonsense, the Supreme Court has now said – “Thou shalt not.”

Don Pesci is a Vernon, Conn.-based columnist.