- - Friday, January 17, 2014

Today, more than 18 states have laws on the books explicitly requiring all or some public employees to pay dues or fees to a union they may not want as a condition of employment. The vast majority of unionized government workers in the United States reside in these Big Labor-dominated states.

However, on Tuesday, the U.S. Supreme Court is hearing for the first time in more than 3 decades a case that directly challenges the constitutionality of compulsory financial support for government unions.

In Harris v. Quinn, a group of independent-minded home-care providers who have been redefined by Illinois elected officials as public employees solely for purposes of unionization contend that executive orders, laws and legislation forcing them to pay dues or fees to a union they never asked for violate their First Amendment rights. The Harris plaintiffs are being represented free of charge by National Right to Work Legal Defense Foundation staff lawyers.

Federal courts have repeatedly conceded over the years that public-sector forced union dues and fees are constitutionally problematic. In fact, Justice Antonin Scalia said in the 2007 majority opinion for the Foundation-won Davenport case that it is “undeniably unusual for a government agency to give a private entity the power, in essence, to tax government employees.”

It was in another Foundation case, Abood, in 1977, that the high court originally sanctioned this “undeniably unusual” privilege for government-union bosses. Abood authorized forced financial support for government unions’ bargaining-related activities in jurisdictions where union officials are legally empowered to represent in the workplace employees who don’t want a union, along with those who do.

If legislators grant union officials the latter privilege, theorized Justice Potter Stewart while writing for a six-justice majority, legislators must also have the option to empower union bosses to force unwilling workers to pay union dues or fees. Otherwise, he said, such workers would get a so-called “free ride” on the “benefits” of the union’s bargaining and contract administration. He all the same conceded that compulsory payments to unions may well “interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.”

Right to Work supporters are all for eliminating government-authorized “exclusive” union bargaining. However, as Pennsylvania Law School professor Clyde Summers, himself no foe of monopolistic unionism, demonstrated in a 1995 scholarly review article, the invocation of “exclusivity” as an excuse for forced union dues and fees isn’t just wrongheaded, it’s “scarcely coherent.”

Quoting from the book he was reviewing, Summers explained that the so-called “free rider” excuse appropriated by Justice Stewart is wrong first of all because under monopoly bargaining, workers who don’t want a union are “often actually made worse off” than they were before.

He elaborated: “Full-timers may bargain to limit the jobs of part-timers, seniority provisions may disadvantage younger workers, and wage increases of the low-skilled may be at the expense of the highly skilled.”

The harmed workers aren’t “free riders”; rather, they are “captive passengers.” There is no even halfway-plausible justification for forcing them to pay union dues as a job condition.

An even greater problem with the putative “free rider” argument cited by Summers is that it is obviously not applicable “to a wide range of private associations.” Here is just one of the multiple examples he mentioned: “If a parent-teacher association raises money for the school library, assessments are not levied on all parents.”

Clyde Summers, since deceased, recognized that denying private organizations the legal power to collect compulsory assessments, even from people who really do benefit from their activities, is a “hallmark of a free society.”

Now, thanks to the Harris plaintiffs and Foundation staff lawyers, the rabidly pro-monopoly unionism administration of Democratic Illinois Gov. Pat Quinn may soon be forced to explain why, if private organizations are typically not granted what is effectively taxation power, union bosses deserve this special privilege.

Freedom-loving citizens across the country owe it to themselves to watch what the high court does in Harris, and hope that the justices do not allow the Quinn administration to sidestep this very difficult question.

Mark Mix is president of National Right to Work.