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California's riposte to the Janus case

Editorial Staff

Janus was a Roman god: the one with two faces. California's Attorney General Xavier Becerra has those traits: on the one hand, he's all about consumer rights, the rights of the under-privileged including immigrants but on the other he's in favour of allowing unions to compel non-members to hand over part of their wages. The idea that oppression is oppression is oppression seems to have passed him by and it's a case called Janus v AFSCME, Council 31 and others that has compelled him to nail his colours to the mast. Government bad, socialist bullies good. His defiance of Federal law is well recognised but this is a case where all the good he's done, and there is a lot, is undermined.

This is the statement from California's most senior law officer:

“While I adamantly disagree with the Court’s decision, here in California, our state’s strong labour laws remain unaffected,” *said Attorney General
Becerra. “Critically, California public employees still have the right to unionise and remain protected from employer retaliation against union
activities. We are confident that these hard-working Californians will continue to be the backbone of our state and our nation.”

This guidance highlights existing state laws that protect collective bargaining and strengthen public employees’ rights to form, join, and engage in the
activities of their union. It also reminds Californians that public employers are prohibited under state law from retaliating, discriminating against, or
threatening public employees for exercising their rights to engage in collective action. The guidance further notifies public employees of resources that are available to them if they believe that their labour rights have been violated.

Earlier this year, Attorney General Becerra filed a friend-of-the-court brief in the /Janus/ case that argued in favour of agency fees as an integral part of
California’s collective-bargaining system. In the brief, the Attorney General described the critical role public employees play in strengthening the economy and our communities.

So, here's the thing: the Janus case did not "violate" anyone's rights. First, people have rights only if the government gives them. Simply referring to "rights" might sound good but it's wrong. Secondly, while the Attorney General's statement yesterday referred only to Council 31, in fact the principal defendant was the American Federation of State, County and Municipal Employees.

The case arose out of a collective bargaining agreement in Illinois. Under the agreement, public employees are entitled to form and/or join a union (so that's a right). The unions can form "bargaining units" which sounds like the kind of term that Karl Marx would have invented. The website "illinoispolicy.org" which has a banner in which the AFSCME logo is very prominent has an article called "Labour Law 101: Understanding the basics".

They say that a bargaining unit is "a designated group of employees that is bound together to negotiate with the employer. For example, the Chicago Teachers (sic, which is outrageous) Union represents a bargaining unit of educators employed by Chicago Public Schools." The illiteracy of the name is one thing: it should have an apostrophe to be grammatically correct. Another thing is that it doesn't say who binds the group together or under what authority that is done.

In the Janus case, it was accepted that there was a "bargaining unit" and that that bargaining unit had exclusive rights, under a collective bargaining agreement, to negotiate terms of employment for the body of workers at large.

Unions charge members what are called "dues." Think of that as a membership fee. So, the logical position would be that members pay fees and non-members do not. But union matters are they are ideological and rarely logical. In ABOOD v. DETROIT BOARD OF EDUCATION, (1977, US Supreme Court), challenged a statute in Michigan which provided, inter alia "an "agency shop" arrangement, whereby every employee represented by a union, even though not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues. " (per Findlaw.com). A number of teachers issued proceedings seeking a declaration that the law should be struck down on the grounds that " were unwilling or had refused to pay Union dues, that they opposed collective bargaining in the public sector, that the Union was engaged in various political and other ideological activities that appellants did not approve and that were not collective-bargaining activities, and prayed that the agency-shop clause be declared invalid under state law and under the United States Constitution as a deprivation of appellants' freedom of association protected by the First and Fourteenth Amendments." The Ahmood judgment is long but can be summarised, for the narrow point of this article, as saying that the Supreme Court approved the principle that non-members of a union could be required to pay a proportion of the dues payable by members. This was termed "agency fees" to emphasise that it was to relate only to those matters covered by the agreement and no to include, for example, political campaigning.

But that was then and times were different. Around the world, in the mid-1970s, commerce and industry was a battleground. Unions sought to bring down governments and companies. Union leaders were openly Marxist. More than a decade of a post-war drift to the Left had placed governments in a ridiculously weak position and companies entirely at the whim of union action. Economies began to collapse. Desperate to survive, companies entered into ill-advised mergers. Unions countered by declaring "closed shops" in which only union members were eligible for employment. There were widespread nationalisations. Since then, governments have gradually chipped away at the power that had been so readily handed to unions. Courts have curbed excesses. What the Marxists see as over-ruled rights, the centre-left see as economically expedient. After all, workers rights can only exist when people work. At the height of the global financial crisis, unions were still trying to negotiate higher pay and job security from companies that were out of business. Something had to give.

The question of coercing non-employees to contribute to unions with which they do not agree is one of those areas. The unions concerned claimed that the "agency fee" should be set at just over 78% of the union dues. Janus and others said that this was impossible and that excluded expenses must have been hidden and also re-opened the debate over whether, some 40 years after Abood it was right to force people to carry a message that they did not agree with.

It is on this last point that we can see a trend: Becarra, again on the wrong side of the argument, was infuriated when the Supreme Court recently ordered that legal abortion clinics could not be forced to carry anti-abortion messages in all their literature. The decision in Janus is essentially the same: no person can be forced to pay for another to act in a way that they do not agree with.

In Janus, the Supreme Court did not mince words: Mark Janus is entitled to oppose the positions taken by the Union and entitled not to be a member. He is also entitled not to have e.g. a Union purport to represent him when it does not. To do so, breaches his rights under the First Amendment (and they are rights). The method by which this was done, i.e. the "extraction of agency fees from non-consenting public sector employees" is a breach of the First Amendment.

Abood is over-ruled

"Abood was poorly reasoned," said the Supreme Court in Janus.

Becerra needs to tread carefully: he is beginning to look unreasonable in his pursuit of an outdated form of leftism. He's a good man who wants to do the right thing and in many cases does but he needs to start being a lawyer and stop being a politician.

Further reading:

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