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The lawyers who beat the unions



The Supreme Court has completed his term this week

Jacob Huebert

calls a "perfect decision for workers freedom". In a groundbreaking first amendment, the judges ruled Wednesday 5-4 that the government can not authorize unions to charge for public employees who choose not to join.

For six years in a series of majority opinions of Justice

Samuel Alito,

The court had signaled that such a decision was in progress. It was widely expected in 2016, when a similar case was heard. Then justice

Antonin Scalia

died and left the court with a 4-4 deadlock. The vacancy apparently led to a change in the trade union's dispute settlement strategy, the ironic result of which was the fact that Wednesday's case was . American Federation of State, County and Municipal Employees arrived faster than usual

Mr. Huebert, 39, is head of the Litigation Justice Center, a law firm with public interest in Chicago. He and Bill Messenger, 43, of the National Right to Work Legal Foundation led the team that commissioned the case

Mark Janus,

a Springfield, Illinois, Social Worker

A government employee, Mr. Janus, 65, had politically refused to join the union. "Mark's view," says Mr. Huebert, "is that the things Afscme advocated have put Illinois in bad shape." But under the law of Illinois, Mr. Janus was still required to pay Afscme a so-called agency fee ̵

1; 78% of the regular union dues – to cover their tariff costs.

The reason for the agency fees is that a salary negotiation negotiated by the union applies to all employees, ie a non-member who does not pay. This representation is a "free rider". Trade unions also participate in political activities, including candidate endorsements and election campaigns, but in an agency business only members' fees can be used. The court introduced this concept in 1977 in a case Abood v. Detroit Board of Education from the private sector to the public sector. It argued that while governments could not make union membership a condition of employment, they could give unions the opportunity to pay negotiating fees for collective bargaining

The dividing line between what is termed "paid" The Language use of unaffordable political spending proved to be a difficult, hair-raising exercise. In a 1991 case, the Supreme Court found that, according to Mr. Messenger, "lobbying is not chargeable – unless you are in favor of enforcing or ratifying the collective agreement."

For public employees, Mr. Janus and his lawyers argued that the whole distinction was wrong. If the people on the other side of the negotiating table are government officials, Mr. Messenger says, "Collective bargaining is basically like lobbying" or "petitioning the government for reparation of grievances" – each of which is a "core-first amendment" Activity. "In this perspective, the requirement that a government employee pay an agency fee means being forced to take an oath against his conscience.

" Anything a public sector union does is political, "says Mr. Huebert Illinois Afscme Council 31, which he calls "an incredibly influential force in state politics," has "stuck" years in negotiations with Republicans

Governor Bruce Rauner.

"They have not only argued for higher wages and higher benefits, but also for higher taxes," says Mr. Huebert. "This is part of the negotiations – that they have tried to persuade the governor to work for higher taxes." Under Abood, the union was still able to finance this activity with money from dissenters like Mr Janus.

In 2012, the first crackling in the Abood foundation was heard. An attorney for national labor law went to the judges to hear a case Knox v. Service Employees International Union, who questioned what Mr. Messenger calls "a disgusting project by the SEIU in California." The union had a "special audit" for members and non-members for "a political repatriation fund" against three election decisions signed in 2006, Governing Governor Arnold Schwarzenegger. When non-members complained, Mr. Messenger said, the SEIU promised to return the money in the next charge cycle at the end of the campaign. It's basically like a bond for a political campaign.

The judges said 7-2 that this ruling was unconstitutional, since it was apparently a non-chargeable political activity, it was not Abood. But Judge Alito criticized Abood in a majority opinion, which four colleagues joined, as "without any concentrated analysis"

He went much further Harris v. Quinn (2014), which Mr. Messenger represented before the Supreme Court It was a program initiated by former Illinois governor Rod Blagojevich, in which the state government stated that people who accepted Medicaid payments for a disabled person at home were "public employees for purely work purposes" "Many of them cared their own parents or children, but the SEIU Chapter used some of their subsidies as fees or agency fees.

As in Knox the problems Harris grew up were too narrow to require a reconsideration of Abood. But in a 5-4 decision against the SEIU, Justice Alito delivered a scathing criticism of the 1977 decision, which he called "questionable for a variety of reasons." Among other mistakes he wrote, the judges who had decided Abood . had been "seriously mistaken" in interpreting past cases, "fundamentally misunderstood" one of them and "not recognizing the difference between public and private sector unions" and "the conceptual difficulty in distinguishing paid expenses from non-rechargeable ones" in the governmental context , He added that "a critical pillar of the Abood Court analysis is based on an unsupported empirical assumption."

Although Abood Abood was still binding on the lower courts The unions were assured to win every challenge at district and appellation level. Justice Alito and his colleagues seemed to invite exactly that: a case that allowed them to overturn Abood. One possibility was Janus which was launched in 2015, when Governor Rauner called a federal court to approve his order prohibiting charges. The court found that the governor was unable to make such a claim, but it allowed the case to proceed with Mr Janus as principal claimant.

Another legal challenge reached the judges first. On January 11, 2016, they heard in Friedrichs against the California Teachers Association arguments. Judge Scalia died on February 13th. On March 29, Friedrichs ended with a whimper: "The verdict is upheld by an equally divided tribunal."

Rebecca Friedrichs

would still have to pay an agency fee, and Scalia's death had extended the lease of life Abood Back in Illinois Janus was awaiting a Friedrich's dissolution. Obviously the unions thought that the job in Scalia would be filled by a Democrat MP Abood was safe. After Friedrich's hissing, Mr. Messenger says that Afscme " Janus " "dismissed" what was different than in all other cases in which they tried to do it "The Seventh US Court of Appeals upheld the application for release in March 2017. The case was thus prepared for the Supreme Court, which this February brought to a nine-member court, including the judiciary

Neil Gorsuch.

The result was everything that Messrs Janus, Messenger and Huebert had hoped for, with a larger majority than 5-4. The Supreme Court unequivocally rejected the idea that unions' interest in levying fees they call "fair share" trumps the non-member's right of first amendment. "The petitioner vigorously protests against this freerider label," wrote Justice Alito. "He argues that he is not a freewheeler on a bus headed for a destination he wants to reach, but more like a person who is shanghai because of an unwanted trip."

It is important that public unions can charge fees only from employees who "agree" to pay them. Mr Messenger said: "Unions take the position that it is not a violation of the first amendment, unless the individual complains about it." Since Harris some states have still levied brokerage fees from domestic workers repaying the money only if the non-member requested it. "Knox sharply criticized the idea of ​​the Einwändeanforderungen," says Mr. Messenger. Janus completely defeated her.

But there are other strategies that unions – and their supporters in state parliaments – will certainly use to limit the impact of this week's ruling. "Four states," says Mr. Messenger, "have indeed passed laws that force every public employer to negotiate with the union for a binding orientation on new employees."

"Imagine it's your first day of work anywhere", He said, "You're going through the forms. They say, "Hey, this union – sign this card," and, "By the way, you'll meet the union organizer in 30 minutes, everyone will sign." It is a very violent constraint kind of setup. "He offers an analogy:" Imagine, if the state of Texas said: Whoever wants to own a firearm must go to the National Rifle Association to attend a 60-minute meeting [to] join the NRA. The ACLU would scream a bloody murder. (The American Civil Liberties Union had stayed out of these cases until this year, when they filed a friend-of-court letter requesting the judges Mr Janus' first amendment.] [19659003] When it comes to overturning the field in favor of unions, Mr. Messenger says, "California still seems to be inventing new things." On the same day, the court ruled Janus, Governor Jerry Brown signed a state budget stating that "The timing of binding orientations is not publicly known – it can not be disclosed to the public." An earlier law states that "names, contact information, public employees are not a public record and are given only to a union

Another tactic that incriminates the rights of workers of the first constitutional amendment is to give them the dissolution Allow membership only during a short annual window. "If the card says that a person can only revoke between December 25 and January 5," says Mr. Messenger, "the public employer must keep the money, no matter how much the employee complains." • Even inform the employee about this date restriction: In Hawaii and New Jersey, the window is codified as a statute.

Because of this tactic, even a favorable decision of the Supreme Court does not necessarily end. After the judges decided Harris, Mr. Messenger asked the courts to reimburse $ 32 million in fees that the SEIU had mistakenly received from domestic workers. The union also held after a court infringement that non-members would only be entitled to a refund if they had applied separately. The Seventh Circuit agreed, and in January Mr. Messenger appealed against the case Riffey v. Rauner Appeals to the Supreme Court.

On Thursday, the judges dismissed the Circuit Court's ruling and sent the case back "for further consideration with regard to Janus." The consent of the Supreme Court to consent should oblige the Appeals Judges, in favor of the clients Mr Messenger. That would probably dissolve things – but if Riffey regained the Supreme Court, Mr. Messenger hopes that there will be a full complement of nine judges.

Mr. Taranto is the editor of Editorial magazine.

Published in the printed edition of June 30, 2018.


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