Free Speech and Nonmember Union Agency Fees

[fromderinside]

Wow. So corporations are chartered entities for making markets where those who willingly take money for service within the venture are not supposed to be impacted by actions of those who hire them beyond what standards and requirements they negotiate by joining into unions. Seems like a perfect opportunity for the union to negotiate fees for service on behalf of employees who comprise the union from the corporation for serving employee organizational and benefits just as they do negotiate the conditions of servicing those needs and benefits. So instead of getting money from employees for representing them the unions should get money from corportation for servicing needs of employees working for the corporation.

 

[Bomb#20]

They're a court. Their job is to answer the question asked, not some different question they might think is a better one to ask. As Opoponax points out, what's an acceptable level of agency fees probably wasn't part of either side's argument.

The Court had the option of ruling that agency fees are not acceptable when there is compelled speech. That has absolutely nothing to do with an acceptable level of agency fees.

I'm not following. The court did rule that agency fees are not acceptable when there is compelled speech. They also ruled that there is always compelled speech.

Instead of taking a nuanced gray appear approach that it has favored in other cases, it decided to take black and white approach. I strongly suspect that choice was ideologically driven, not legally driven.

There's precedent for remanding a case to the appellate court with an instruction to treat it as an "as applied" challenge instead of a "facial" challenge; you could probably make a fair case that that's what they should have done here. But they'd have needed to offer some criteria for how to draw the line between what's bargaining and what's political advocacy, or the case would have just come straight back to them. The trouble is, they've had a series of cases where lower courts tried to draw that line and failed, they complained about "perpetual give-it-a-try litigation", and they weren't satisfied the line can ever be drawn in a way that will make it clear to lower courts what to do the next time a union decides to roll the dice and see what it can get away with.

But you may well be right -- a less ideological court might have tried harder to come up with a followable criterion. The union's behavior in this case was so egregious that it seems likely there was some way to dispose of the case on narrower grounds. If you're going to rule that agency fees are unconstitutional per se, it's probably better to wait for a clean case -- one where the union is actually abiding by the intent of the agency-fee law instead of playing fast-and-loose with the rules, so it will be the law on trial rather than the union.

 

[Bomb#20]

They're a court. Their job is to answer the question asked, not some different question they might think is a better one to ask.

They already had ruled on it 41 years ago... so if they are planning on shredding 41 years of precedence, they need to ask more questions.

Have you read the ruling? They detail the reasoning flaws in the Abood decision. The 41-year-old precedent was a pretty cruddy precedent.

 

[Bomb#20]

Did the majority explain how they managed to find spending money in dues to help provide a stable basis for the Union to perform its primary task is unacceptable compelled speech, but being forced into the collective bargaining is acceptable compelled speech?

The facts of the case involved collective bargaining, and it was during the process of collective bargaining that the compelled speech transpired.

Exclusive collective bargaining in itself is compelled speech, and the majority affirmed at least that portion of the previous case.

It's only compelled speech in itself if there are agency fees -- otherwise the non-member isn't saying a bloody thing. It isn't compelled speech for a third party to falsely claim to speak for you.

Janus under the law, still has no ability to bargain on their own regardless of paying full dues, partial dues, or no dues. That hasn't changed.

That the bargaining is exclusive only means that if Janus speaks for himself, or he finds a different union willing to speak for him, the Illinois government is contractually bound to ignore him. Being ignored doesn't raise a compelled-speech issue.

 

[Bomb#20]

Truly the odd finding in this court case is that the man can not be compelled to pay the union a fee for them to bargain his contract... but is still compelled to have them bargain his contract.
I find it interesting the lengths that the conservative majority are willing to go make an argument based on intent and what people say. We saw this in the Bakery Case and again in this case.

There's nothing odd about that. It's entirely normal; and in fact bakery cases are a perfect example of the principle. A Christian baker can be compelled to have a gay-rights activist provide him with customers, but he cannot be compelled to pay the activist a finder's-fee for the unrequested service.

 

[Bomb#20]

Then don't take a union job. Nobody is forcing you.

When the subject is minimum wage, the phrase "get a different job" is considered proof that the speaker wants to oppress the workers. But when it is a union, that is somehow entirely different.

Yes, it is.

The people to whom that seems entirely different appear to think it's entirely different because they interpret the phrase "oppress the workers" as referring to the broad generality of workers, but not to any specific subsets of workers. It appears that in their minds, their overall intent to help the broad generality of workers is in itself sufficient to acquit them of intending to oppress a smaller subset of workers, irrespective of whether that is in fact what they intend to do.

Found on another website:

I am a Union member shareholder and have been for a very long time.

I've seen a lot, I know a lot, and there's a lot I have a problem with.

Problem #1. Unions Corporations often donate money to political candidates. This money comes from Union dues corporate assets. That means Union members shareholders are donating money to candidates they may hate. That's not fair.

Problem #2. Unions Corporations often have expensive trips for their delegates, shop stewards, etc. executives. They go to Florida, Colorado Europe, the Carribean, etc. They spend a ******** of money, that comes from Union dues corporate assets. This is just not right.

Anyone else have problems with Unions corporations? Speak up!! Speak out!!

Is the phrase "sell your stock and buy a different investment" proof that the speaker wants to oppress the shareholders?

 

[laughing dog]

I'm not following. The court did rule that agency fees are not acceptable when there is compelled speech. They also ruled that there is always compelled speech.

And that ruling - that there is always compelled speech during collective bargaining with a public employee union - is a blunt hammer approach. That was a deliberate choice on the part of the majority, because it was the best way to reverse Abood and 40 + years of established labor relations with public employee unions (one of the bete noires of hardright conservatives). The fact this majority (especially Justice Roberts) did not take its more nuanced approach is telling.

 

[James Madison]

I'm not following. The court did rule that agency fees are not acceptable when there is compelled speech. They also ruled that there is always compelled speech.

Instead of taking a nuanced gray appear approach that it has favored in other cases, it decided to take black and white approach. I strongly suspect that choice was ideologically driven, not legally driven.

But you may well be right -- a less ideological court might have tried harder to come up with a followable criterion. The union's behavior in this case was so egregious that it seems likely there was some way to dispose of the case on narrower grounds. If you're going to rule that agency fees are unconstitutional per se, it's probably better to wait for a clean case -- one where the union is actually abiding by the intent of the agency-fee law instead of playing fast-and-loose with the rules, so it will be the law on trial rather than the union.

Alito addressed the fact that the speech by the Union before them was not an anomaly, but cited to the speech of other unions, speech which was more egregious than the speech before the Court.

As the examples offered by respondents’ own amici show, unions express views on a wide range of subjects—education, child welfare, healthcare, and minority rights, to name a few. See, e.g., Brief for American Federation of Teachers as Amicus Curiae 15–27; Brief for Child Protective Service Workers et al. as Amici Curiae 5–13; Brief for Human Rights Cam* paign et al. as Amici Curiae 10–17; Brief for National Women’s Law Center et al. as Amici Curiae 14–30

Unions can also speak out in collective bargaining on controversial subjects such as climate change,18 the Con* federacy,19 sexual orientation and gender identity,20 evolu* tion,21 and minority religions.22 These are sensitive politi*cal topics.






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[ZiprHead]

I'm not following. The court did rule that agency fees are not acceptable when there is compelled speech. They also ruled that there is always compelled speech.

Instead of taking a nuanced gray appear approach that it has favored in other cases, it decided to take black and white approach. I strongly suspect that choice was ideologically driven, not legally driven.

But you may well be right -- a less ideological court might have tried harder to come up with a followable criterion. The union's behavior in this case was so egregious that it seems likely there was some way to dispose of the case on narrower grounds. If you're going to rule that agency fees are unconstitutional per se, it's probably better to wait for a clean case -- one where the union is actually abiding by the intent of the agency-fee law instead of playing fast-and-loose with the rules, so it will be the law on trial rather than the union.

Alito addressed the fact that the speech by the Union before them was not an anomaly, but cited to the speech of other unions, speech which was more egregious than the speech before the Court.

As the examples offered by respondents’ own amici show, unions express views on a wide range of subjects—education, child welfare, healthcare, and minority rights, to name a few. See, e.g., Brief for American Federation of Teachers as Amicus Curiae 15–27; Brief for Child Protective Service Workers et al. as Amici Curiae 5–13; Brief for Human Rights Cam* paign et al. as Amici Curiae 10–17; Brief for National Women’s Law Center et al. as Amici Curiae 14–30

Unions can also speak out in collective bargaining on controversial subjects such as climate change,18 the Con* federacy,19 sexual orientation and gender identity,20 evolu* tion,21 and minority religions.22 These are sensitive politi*cal topics.

Is there any topic a union could discuss with management that could not be considered political? I don't think so. That, to my mind, is the rub here.

 

[James Madison]

Alito addressed the fact that the speech by the Union before them was not an anomaly, but cited to the speech of other unions, speech which was more egregious than the speech before the Court.

As the examples offered by respondents’ own amici show, unions express views on a wide range of subjects—education, child welfare, healthcare, and minority rights, to name a few. See, e.g., Brief for American Federation of Teachers as Amicus Curiae 15–27; Brief for Child Protective Service Workers et al. as Amici Curiae 5–13; Brief for Human Rights Cam* paign et al. as Amici Curiae 10–17; Brief for National Women’s Law Center et al. as Amici Curiae 14–30

Unions can also speak out in collective bargaining on controversial subjects such as climate change,18 the Con* federacy,19 sexual orientation and gender identity,20 evolu* tion,21 and minority religions.22 These are sensitive politi*cal topics.

Is there any topic a union could discuss with management that could not be considered political? I don't think so. That, to my mind, is the rub here.

That is certainly the argument Alito made, or at the very least it is inferred.

Alito’s argument certainly does have an inevitability aspect to it. He documents the long history of litigation on the issue of political speech by Unions and the lower courts 41 years of frustration in deciding whether the Union speech impermissibly crosses the lines in Abood. He also referenced some decisions in which the Union speech clearly violated Abood but the Court or a lower court baptized such with its blessing of ruling in favor of the Union.

So, for Alito, he surveys the 41 year landscape since Abood and determines the history and evidence shows inevitability, and essentially remarks that we shouldn’t deceive or delude ourselves into thinking the the occurrence of unions engaging in political speech would somehow cease should they give an opinion admonishing unions to refrain from speech. After all, according to Alito, they’ve already been told by the Court 41 years ago to not engage in political speech but it’s happened anyway.


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[Underseer]

Conservatives and libertarians (who are completely different, it's just a coincidence that they keep taking the same positions on issues and use the same arguments) hate unions because they stand for the little guy and stand up to the elites. They are therefore the enemy and must be destroyed so that the elites can do whatever they please unopposed.

 

[laughing dog]

Is there any topic a union could discuss with management that could not be considered political? I don't think so. That, to my mind, is the rub here.

How about the terms and conditions of employment? How is those items "political"?

 

[James Madison]

NVM

 

[ZiprHead]

Is there any topic a union could discuss with management that could not be considered political? I don't think so. That, to my mind, is the rub here.

How about the terms and conditions of employment? How is those items "political"?

That's easy. Some people feel that labor unions should not exist at all to negotiate terms and conditions. This is a political position.

 

[laughing dog]

Is there any topic a union could discuss with management that could not be considered political? I don't think so. That, to my mind, is the rub here.

How about the terms and conditions of employment? How is those items "political"?

That's easy. Some people feel that labor unions should not exist at all to negotiate terms and conditions. This is a political position.

That may be the implicit view of some the members of SCOTUS, but it is not a logical one, since labor unions already exist and have not been declared unconstitutional.

 

[ZiprHead]

That's easy. Some people feel that labor unions should not exist at all to negotiate terms and conditions. This is a political position.

That may be the implicit view of some the members of SCOTUS, but it is not a logical one, since labor unions already exist and have not been declared unconstitutional.

You wanted a political. view you got a political view.

 

[T.G.G. Moogly]

So, for Alito, he surveys the 41 year landscape since Abood and determines the history and evidence shows inevitability, and essentially remarks that we shouldn’t deceive or delude ourselves into thinking the the occurrence of unions engaging in political speech would somehow cease should they give an opinion admonishing unions to refrain from speech. After all, according to Alito, they’ve already been told by the Court 41 years ago to not engage in political speech but it’s happened anyway.

That's the case.

It is sad that unions have become their own worst enemy. This day never needed to come.

 

[Jason Harvestdancer]

Conservatives and libertarians (who are completely different, it's just a coincidence that they keep taking the same positions on issues and use the same arguments) hate unions because they stand for the little guy and stand up to the elites.

Please support your claim that libertarians, who don't hate unions and see them protected under right of free association and right to decline to conduct business, hate unions.

 

[Loren Pechtel]

Conservatives and libertarians (who are completely different, it's just a coincidence that they keep taking the same positions on issues and use the same arguments) hate unions because they stand for the little guy and stand up to the elites. They are therefore the enemy and must be destroyed so that the elites can do whatever they please unopposed.

Conservatives (not neo-cons!!) and libertarians are similar on fiscal issues. Libertarians are much closer to liberals on social issues.

And unions (as implemented in the US at least) are basically a statement that the only thing that distinguishes workers is seniority. Libertarians are far too individualist to like that.

 

[Jason Harvestdancer]

As much as I disagree with the laws that show deference to unions, I still believe that based on a right to free association and a right to conduct business or refuse to do so, the unions themselves are not a problem. It is their intertwining with politics that is a problem. Of course they have to do so since businesses are also intertwined with politics.