The United States Conference of Catholic Bishops and the Becket Fund for Religious Freedom usually are on the same side of legal issues. Both have argued in favor of school vouchers and against abortion and same-sex marriage. In Janus v. AFSCME, however, a labor law case that will be argued at the Supreme Court on Feb. 28, the bishops and the Becket Fund support opposite sides in a dispute regarding mandatory fees for union representation. The bishops submitted an amicus brief in support of the fee requirements, while the Becket Fund filed in favor of employees who have religious objections to mandatory fees.
The U.S.C.C.B. position emphasizes the Catholic Church’s longstanding support for workers and their right to organize for fair pay and safe working conditions. The bishops are defending an Illinois law that permits government employees to join together in bargaining units and, by majority vote, designate a union to collectively represent them in contract negotiations and employment disputes.
The law does not require employees to join the union that won the election to represent them, but everyone in the bargaining unit may be required to pay union dues (for members) or what are known as “fair share” or “agency fees” (for non-members). Fair share fees are less than union dues because they are calculated to cover only the cost of employee representation and may not be used to support other union activities, such as political lobbying or social events.
The law contains an exemption clause that permits religious objectors to avoid paying the agency fee by having an equivalent amount paid to a nonreligious charitable organization. The Catholic bishops consider this accommodation sufficient to protect religious freedom and necessary to protect “the right of workers to organize and bargain collectively” and “serve the orderly functioning of the workplace and the common good of workers.” In the bishops’ view, the alternative, which would permit religious objectors to become “free riders” and achieve a financial windfall by avoiding the cost of their representation, is based on a “concept of freedom...too absolute and extreme.”
U.S. bishops are defending an Illinois law that permits government employees to join together in bargaining units to collectively represent them in contract negotiations and employment disputes.
In contrast, the Becket Fund calls fair share agency fee requirements “coercion laundering” because “ultimately it is the government that is forcing a private citizen who doesn’t ascribe to a particular point of view to pay money to promote that point of view.” This argument discounts the charitable contribution alternative to agency fees. Granted, it took Bryan Trygg, a trailblazing religious objector to the Illinois Iaw, six years to have his rights recognized, but he ultimately was successful in having his salary withholdings paid to the charity of his choice and guaranteeing a contractual mechanism for other religious objectors to assert their opt-out rights.
The Supreme Court is unlikely to settle the legal differences voiced in the amicus briefs of the U.S.C.C.B. and the Becket Fund, however, because the case in all likelihood will be decided on free speech rather than religious freedom grounds. The free speech argument is based on the principle that the First Amendment prohibits compelled political speech and on the assertion that public sector union activities, even those limited to core employment objectives such as better wages and working conditions, are inherently political.
For example, a government employee who is not a religious objector but who favors low taxes and minimal government spending may be forced to pay an agency fee that funds union speech designed to secure contract benefits that may result in higher taxes and increased government spending. This form of coerced speech, according to Mr. Janus and his supporters, violates the First Amendment.
In Abood v. Detroit Board of Education (1977), the Supreme Court upheld the constitutionality of public-sector fair share agency fees, but the court nearly overruled that decision when, in Friedrichs v. California Teachers Association (2016), a 4-to-4 split vote left the Abood ruling in place.
The states are split on the issue of requiring fair share fees; 22 states and the District of Columbia currently permit mandatory agency fees and 28 states plus Guam have right-to-work laws that do not require such payments (although Missouri’s recently passed right-to-work law is subject to a veto referendum ballot initiative).
It is likely that Abood will be overruled now that Justice Neil M. Gorsuch is on the bench, and the federal government has switched positions from supporting to rejecting the constitutionality of fair share public-sector agency fees. Nevertheless, the end of agency fees, should it come, will not be the end of labor unions. Many employees understand the importance of a common voice and the benefit of strength in numbers. Unions in right-to-work states are returning to their grassroots origins by increasing community outreach and involvement and devising strategies to reduce the cost of representing nonpaying employees.
Regardless of the outcome of the Janus case, the prospects of U.S. workers have been radically altered by technology and by corporate decisions to utilize growing numbers of “independent contractors” and consultants rather than employees entitled to contractual and statutory benefits. Pro-union labor laws were enacted in response to untenable working conditions, frequent and often violent strikes, and disruptions in crucial supply chains. The resulting employment equilibrium benefited the entire nation, but that equilibrium is over.
Workers now earn less (in terms of buying power), and income disparity is growing. Agency fee laws may become a thing of the past, but Americans may eventually demand new laws to ensure that a day’s work provides at least a day’s food, a day’s housing, a day’s transportation, a day’s health care and a day’s education.