Commentary: A Course Change for Public Sector Unions (July, 2018)

by John McClaughry

In his Virginia Statute of Religious Freedom (1785), Thomas Jefferson famously declared that “to compel a man to furnish contribution of money for the propagation of opinion which he disbelieves and abhors is sinful and tyrannical.”

In that spirit, the U.S. Supreme Court last month struck down “agency fees” taken by public sector unions from non-members’ paychecks. “The First Amendment,” Justice Alito wrote in the Janus v. AFSCME case, “does  not  permit  the  government  to  compel  a person  to  pay  for  another  party’s  speech  just  because  the government  thinks  that  the  speech  furthers  the  interests  of the person who does not want to pay.”

The case not only held that requiring non-members to pay “agency fees” is coercing political speech, but also that “neither  an  agency  fee  nor  any  other  payment  to  the  union  may  be  deducted  from  a  nonmember’s wages, nor may any other attempt be made to collect such a  payment,  unless  the  employee  affirmatively  consents  to  pay.”

The ruling applies only to public sector unions, the most prominent of which are the Vermont State Employees Association and the Vermont-NEA teachers union. The reason it doesn’t apply to a unionized private employer like General Electric is important.

Private sector unions have no way to influence the decision makers – management and stockholders – of their employers. A union’s ultimate bargaining asset is the right to withhold its members’ labor – to go on strike. But state employees and teachers unions are inherently political. Through their political activities they can elect and influence the governor, the legislature, and the school boards to give them greater gains in the bargaining process.

This leads public sector unions to join political coalitions with other like-minded organizations to elect liberal office holders who once in office will support the causes of all of the coalition members. These may include civil rights, social issues, union privileges, climate change measures, immigration laws, government-run health care, and “free” college tuition.

The public sector unions invariably support expanded government programs and taxpayer-financed spending increases, which lead to better pay and benefits for more dues-paying union members. In Illinois, where the Janus case originated, the state employee union (AFSCME) made tax increases to support higher pay and benefits a contract bargaining issue with the governor.

So what’s next? Vermont’s public sector unions are still entitled to organize and bargain with state government, school districts, and municipalities. The resulting contracts will still cover wages, benefits, working conditions and grievance procedures for all employees in the defined bargaining unit. But the unions can no longer automatically pocket “agency fees” (of as much as 85% of full union dues) from employees who want no part of the union’s political activities.

The Janus ruling inevitably means that more workers will decide not to pay money to a union advocating against their own political preferences. The National Education Association is projecting a 14% decline in membership.

An article by Alana Samuels in The Atlantic (6/27/18) describes how some unions are reconceptualizing their relation to prospective members. The United Domestic Workers of America represents Medicaid-funded home health care workers in California in a contrived “pseudo-union” it lobbied into existence. (The Vermont legislature succumbed to the same pressure in 2014.)

An earlier Supreme Court ruling struck down agency fees payable to this pseudo-union. So, according to its executive director, UDW “had to prove it was providing a valuable service to members and their clients that went above and beyond bargaining over pay.” It launched a home-care registry that matched workers with potential employers, and started offering free CPR and dietary classes to discuss with workers how to feed clients with special dietary needs. It did all this and more on a budget that was 30 percent lower than what it had been before the [Court] decision.

Not surprisingly, VSEA and VT-NEA are moaning about the impact of the Janus case. But that case doesn’t restrain the unions from conducting their core functions– representing the interests of workers to their employers.

The ruling will push those unions, like UDW, to better market their services to attract members who see an advantage in belonging. It will likely reduce the union’s temptation to use union funds to support coalitions to advance unrelated causes that a significant number of prospective union members disapprove of.

That’s a lot healthier for the unions than collaborating with government to coerce non-members to pay fees to finance political activities that they find offensive. Thomas Jefferson would have understood.


John McClaughry is vice president of the Ethan Allen Institute (

{ 1 comment… read it below or add one }

Deanne August 4, 2018 at 2:48 am

Thank you, John.


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