There’s a whole lot of noise in the media about how a case currently before the Supreme Court, Janus V. AFSCME, will end civilization as the unions, in state, county and municipal jurisdictions in non-right-to-work states, understand it.
To understand the case, one needs to understand some basic concepts and definitions:
- Closed Shop – An employment situation in which union membership is a condition of hiring and continued employment. Illegal in U.S. since Taft-Hartley Act of 1947
- Open Shop – An employment situation in which an employee is free to join or not join a union and the union has exclusive rights to negotiate a contract with the employer.
- Union Shop – An employment situation in which an employee is not required to be a union member to get a job but must join after a brief period of employment to keep the job with the employer. This is a common private sector arrangement in non-right-to-work states.
- Agency Shop – An employment situation in which an employee is free to join or not join a union but must pay a fee to the union having exclusive recognition to negotiate a contract with the employer. The fee is generally the union dues paid by members, less the percentage of dues that the union pays for political activities. The unions involved call the payment to a union a “fair share fee”.
- AFSCME is the American Federation of State, County and Municipal Employees, an affiliate of the AFL-CIO.
- Right-to-Work State has a law stating that employees in unionized workplaces may not be compelled to join a union, nor compelled to pay for any part of the cost of union representation, and workers generally get the same contract benefits as union members who do contribute. There are 27 right-to-work states.
In the Janus case, the issue is whether the plaintiff, Mark Janus’ right to free speech under the constitution, is harmed in some way by his obligation to pay fees to AFSCME in an Agency Shop arrangement and, if so, are the 23 state laws creating it in some form or other unconstitutional?
How Does This Case Affect Federal Employees?
Simply put, it doesn’t. In 1978, the Federal sector labor law, enacted that year, created an open shop for Federal employees.
A Federal employee may never be required to join a union. However, once a Federal employee joins a union which has bargaining rights in his organization, he or she must stay a member i.e., pay dues for a minimum of one year.
Federal employee dues withholding is covered by 5 U.S. Code §7115 which states:
(a) If an agency has received from an employee in an appropriate unit a written assignment which authorizes the agency to deduct from the pay of the employee amounts for the payment of regular and periodic dues of the exclusive representative of the unit, the agency shall honor the assignment and make an appropriate allotment pursuant to the assignment. Any such allotment shall be made at no cost to the exclusive representative or the employee. Except as provided under subsection (b) of this section, any such assignment may not be revoked for a period of 1 year.
(b) An allotment under subsection (a) of this section for the deduction of dues with respect to any employee shall terminate when–
(1) the agreement between the agency and the exclusive representative involved ceases to be applicable to the employee; or
(2) the employee is suspended or expelled from membership in the exclusive representative.
(c)(1) Subject to paragraph (2) of this subsection, if a petition has been filed with the Authority by a labor organization alleging that 10 percent of the employees in an appropriate unit in an agency have membership in the labor organization, the Authority shall investigate the petition to determine its validity. Upon certification by the Authority of the validity of the petition, the agency shall have a duty to negotiate with the labor organization solely concerning the deduction of dues of the labor organization from the pay of the members of the labor organization who are employees in the unit and who make a voluntary allotment for such purpose.
(2)(A) The provisions of paragraph (1) of this subsection shall not apply in the case of any appropriate unit for which there is an exclusive representative.
(B) Any agreement under paragraph (1) of this subsection between a labor organization and an agency with respect to an appropriate unit shall be null and void upon the certification of an exclusive representative of the unit.
Of course, I guess some might claim that dues withholding in Federal Agencies is involuntary if one can’t get out except at one-year intervals and that the Federal law is thereby unconstitutional as well.
Who knows, maybe a Federal sector plaintiff will come forward. He or she would have to make an “I’m really stupid, save me from myself” argument since they joined the union in the first place with the understanding they couldn’t get out for a year.
