On June 27, 2018, the Supreme Court decided Janus v. AFSCME, overturning Abood v. Detroit Board of Education and restoring First Amendment rights to millions of public-sector workers. The decision was simple but profound: Government employees cannot be forced to subsidize a union as a condition of public employment. They have the right to decide for themselves whether union membership is worth their money. They can say yes to a union just as freely as they can say no.
Eight years later, however, many unions still seem unwilling to accept that choice. As the plaintiff in Janus, I have often wondered why unions rely on subterfuge to retain members. If they offered a valuable product, wouldn’t workers voluntarily choose to join? Wouldn’t they compete for members by proving their worth?
Instead, many public-sector unions continue to make it difficult for workers to learn about their rights, leave the union, or challenge the union’s control over their workplace.
UNIONS AND LOWER COURTS KEEP IGNORING THE SUPREME COURT
Start with a basic question: Did you ever vote for the union that represents you? Most public employees did not.
Many workers inherited a union years — or even decades — before they arrived. They had no meaningful say in whether that union should speak for them in collective bargaining. And if workers later decided they want a change, good luck.
One tool unions use to preserve control is the “blocking charge.” When workers in a local union wish to leave a parent union or end exclusive representation, there is typically a legal process. Workers petition the state agency that oversees labor relations. If the petition is valid, an election is held, often under state supervision.
But parent unions can delay the process by filing charges that “block” the vote. They may allege that the petition is invalid, that the employer interfered, or that some procedural irregularity occurred. Sometimes those allegations are serious and deserve review. But too often, they appear designed to delay workers from exercising their rights. Delay, in these cases, is the point.
Another problem is taxpayer-funded union business, often called “release time.” Public employees are paid by taxpayers to perform government jobs. Yet in many places, employees are released from their regular duties to conduct union business while still receiving taxpayer-funded pay and benefits.
Union business should be paid for by unions, not taxpayers. When a public employee spends work hours advancing the interests of a private union, the public is footing the bill without receiving a public service in return.
Then there is the problem of notice. Most Americans know the phrase “Miranda rights” because they have heard it in countless crime dramas. But what about “Janus rights?”
Public employees have a First Amendment right not to join or financially support a public-sector union. Yet across the country, many workers are never clearly told that. In some states, unions have secured laws giving them mandatory access to new employees, including closed-door meetings during onboarding. But those workers may never hear the other side: That union membership is optional and that they have a constitutional right to decline.
That is not informed consent. It is a one-sided sales pitch backed by political power.
The Supreme Court recognized in Janus that public-sector collective bargaining is inherently political. That was not an exaggeration. Public-sector unions negotiate over government spending, staffing, discipline, pensions, school policy, public safety, and other matters of public concern. They also spend heavily on politics to elect officials who will later sit across the bargaining table from them.
That creates a cycle every taxpayer should understand. Taxes fund government payrolls. Public employees pay union dues. Unions use those dues to influence elections, lobby for legislation, push for higher taxes, and support policies that strengthen union power. The money may pass through several hands, but taxpayers are helping sustain the system.
Union members are taxpayers, too. Many may not agree with the political causes their unions support. Yet the rank-and-file workers often have little say over the political priorities advanced by union bosses.
This is why Janus mattered. It was not anti-union. It was pro-worker and pro-First Amendment. It did not prevent anyone from joining a union. It simply said the government cannot force workers to support one.
Public employees who value union representation remain free to join and pay dues. But workers who disagree with the union, cannot afford the dues, object to its politics, or simply find no value in membership, must be equally free to walk away.
SEVEN YEARS AFTER JANUS, PUBLIC EMPLOYEES STILL CAN’T QUIT THEIR UNIONS
Eight years after Janus, the fight is not over. Public-sector unions still wield enormous power. Too many workers still do not know their rights. Too many union rules and state laws still make those rights harder to exercise than they should be.
Freedom of association means the right to associate — and equally the right not to. That was the principle at the heart of Janus. It remains just as important today.
Mark Janus was the lead plaintiff in Janus v. AFSCME. He is a senior fellow with the Liberty Justice Center, a public-interest law firm.
