On February 26 the US Supreme Court will hear oral arguments in Janus v. American Federation of State, County and Municipal Employees (AFSCME). At issue is whether forcing government employees to pay for the collective bargaining activities of unions that represent them violates their First Amendment rights. On January 19 the United States Conference of Catholic Bishops (USCCB) filed an amicus brief with the Court in which they took the side of AFSCME against Mark Janus.
I am a Catholic, but I find no logically compelling arguments in the bishops’ brief. To the contrary, I think their arguments fail mainly because they do not understand many of the implications of the key principle of American unionism – exclusive representation – especially in the government sector.
Under American labor law a union is certified as the exclusive bargaining agent of a group of workers by a majority vote of those workers. “Exclusive” means that the union represents all workers who were eligible to vote no matter how they voted or whether they voted. No one else, no other union or even the individual workers themselves, can have any voice in the collective bargaining process.
Unions justify exclusive representation on the grounds that it is “democratic.” But democracy is a form of government, and unions are not governments. People on the losing side of a certification vote are forced to accept representation in the sale of their labor services without their consent.
Exclusive representation creates the “free rider” problem which the bishops lament throughout their brief. Unless dissenting workers are forced to pay union dues, the union would represent them for free. The obvious solution to the free rider problem is to have members-only bargaining. Instead, the USCCB insists that non-members must be forced to pay union dues. It opposes state right-to-work (RTW) laws which proscribe forced dues.
In its 1977 Abood ruling, which the bishops enthusiastically endorse, the Court said that unions representing government-sector employees in collective bargaining under the principle of exclusive representation could force those employees to pay for the collective bargaining representation. At the same time the Court ruled that those government employees could not be forced to pay for any of the unions’ ideological or political activities. To do so would be to force those government employees to pay for political speech with which they may disagree, and this would violate their First Amendment rights.
Janus argues that in the government sector, collective bargaining itself is inherently political.
Janus argues that in the government sector, collective bargaining itself is inherently political. The terms and conditions of government employment affect taxes, government expenditures and public policy. It is bad enough that under exclusive representation he and his colleagues are forbidden to speak on those political matters. (The Janus case doesn’t address exclusive representation.) It is even worse that they are forced to pay for the political speech of the unions that purport to represent them. Forced payment for union political speech, they argue, violates their First Amendment rights.
The USCCB begins by referring to Catholic Social Teaching (CST) on unionism beginning with Pope Leo XIII’s 1891 encyclical, Rerum Novarum through Pope John Paul II’s 1981 encyclical, Laborem Exercens. It correctly says that CST supports the right of workers to form unions and engage in collective bargaining. It goes on to say that CST is the reason that American bishops oppose RTW laws. Such laws, it alleges, make it difficult to form unions. It says that a ruling in favor of Janus on First Amendment grounds would amount to a constitutionally-imposed national RTW law for all government employment. Therefore, it concludes, the Court should rule in favor of AFSCME.
In 2002, I wrote an Acton Institute monograph, Liberating Labor, wherein I argued that a careful reading of papal encyclicals regarding labor unions from Rerum Novarum through John Paul II’s Centisimus Annus (1991) suggests that the popes advocated voluntary unionism on the basis of freedom of association. There is nothing in the encyclicals that implies their authors would endorse American-style unionism based on exclusive representation and forced dues payments. The bishops’ brief ignores this possibility.
Incredibly, the bishops place their opposition to a ruling in favor of Janus on the same level as their opposition to same-sex marriage and abortion. They write (p. 2):
[The Court] should leave constitutional space for the public policy position supported for so long by so many bishops and bishop-led institutions, rather than declare still another such position outside the bounds of what policymakers are permitted to implement by law. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (definition of marriage); Roe v. Wade, 410 U.S. 113 (1973) (prohibition of abortion).
They amplify this point on pp. 13-14.
The mandatory payment of union dues is a secular issue with respect to which the Church has no particular expertise or authority. Same-sex marriage and abortion concern fundamental questions of faith and morals with respect to which, for Catholics, the Church has special teaching authority. It is at least a bit grotesque for the USCCB to conflate such questions.
In the last section of the brief the bishops argue that if the Court does rule in favor of Janus it should make clear that this national RTW ruling in the government sector does not extend to the private sector. But no one suggests that the arguments in the Janus case apply to the private sector. Collective bargaining in the private sector does not involve questions of taxes, government expenditures and public policy. Private sector collective bargaining is not inherently political.
Then the USCCB resorts to exasperating obfuscation. It argues that a constitutionally-based RTW law in the private sector would
be a disaster for private expressive associations that rely on contractual arrangements with their employees as a necessary means to secure reliable assistance in developing and perpetuating a particular message. … This is true whether people are gathering to further the message of advocacy for good jobs, decent wages, and hope for the future, as with a union; or the proclamation of the Gospel of Jesus Christ, as with the Church (pp. 18-19).
What do they mean by “contractual arrangements” which are “a necessary means to secure reliable assistance in developing and perpetuating a particular message”? What does this have to do with government-enabled forced dues payments? Do the bishops really think that the proscription of forced dues would be akin to impairing the proclamation of the Gospel? I certainly hope not.
I expect Janus to win his case. I also expect that the Court will eventually take up the issue of exclusive representation in the government sector. The USCCB and I will be on opposite sides of that case, too.