Wednesday, Sep 19, 2018
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Tom Troy

Right-to-work infringes on employers

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    Illinois government employee Mark Janus walks outside the Supreme Court on Monday, Feb. 26, in Washington.


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    Tom Troy

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Tom Troy

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Is it too much to ask for some consistency from time to time?

The Janus vs. American Federation of State, County, and Municipal Employees case now under deliberation by the U.S. Supreme Court is ostensibly a full-throated defense of an Illinois worker’s right to free speech.

In reality — and this is where the whole consistency issue gets raised — it’s more of that pesky regulation and red tape Republicans are always so concerned about.

Except when it’s the regulation that red tape that advances their goals.

Read last week’s column from Tom Troy

The Janus case is not really about employee First Amendment rights. Like “right-to-work,” it’s about undermining the power of employee unions.

It specifically would prohibit public employers from being able to negotiate agency fees in contracts with employee unions.

What’s remarkable about Republican support for right-to-work and the Janus case is that both are aimed at imposing new restrictions on the rights of employers to set employment conditions for their workers.

It used to be that Republicans objected to the government infringing on the their rights to control their workplace. Back in the day, they didn’t like it when the government told them to maintain safe work places, 40-hour work weeks, and no discrimination in hiring.

Republicans used to attack “activist judges” for that kind of agenda. Judges, we are always told by conservatives, are supposed to interpret the law as intended by its authors, not according to their own political preferences.

As U.S. labor law now stands, public employers have the right to require agency fees or fair share payments by employees who are within a collective bargaining unit.

What that means is that when a union wins the right to bargain on behalf of a class of employees — let’s say utility workers for the city of Toledo — one of the things the union has the right to bargain for is an agency, or “fair share,” fee. The fee is paid by people who choose not to belong to the union, even though they benefit from the union’s negotiation of compensation, working conditions, leave, medical care, pensions, and job security.

To highlight a local example, agency-fee payers in the AFSCME union pay the same dues that regular members do, which pays for the organizing services of the union. AFSCME’s political action committee is funded separately from voluntary member donations. I’m told fewer than two percent opt for the agency fee.

The agency or fair share fee itself is a compromise created 41 years ago by the Supreme Court in response to complaints about the old “closed shop”. Under the old closed shops, unions could collect dues and spend that money to lobby for legislation and influence politicians through campaign donations.

That was an abuse of union power that needed curtailing, and it may still need further curtailing.

Full disclosure — I belong to a union, the Newspaper Guild, which is under the Communications Workers of America, which represents newsroom, business, advertising, and circulation employees at The Blade. I am my local union’s elected secretary. We have the agency fee in our contract, as negotiated by Blade management.

There are legitimate ways to address union power.

Senate Bill 5 in Ohio in 2011 was one such effort. Unfortunately for its sponsors, it was such an overreach that even the local governments and school boards it was designed to benefit with additional negotiating leverage against their unions couldn’t bring themselves to support it. The bill was defeated overwhelmingly in a citizen referendum in 2011.

The Janus case heard this week by the Supreme Court is an attempt to accomplish through the courts what the enemies of unions have not been able to accomplish through legislation.

It is assuredly every state’s right to decide for its own agencies and sub-agencies — counties, school boards, municipalities — what issues they may use at the negotiating table with public employee unions. If the state of Ohio wants to prohibit its departments and agencies from including the agency fee in their contracts, the General Assembly should do so.

It’s kind of ironic to see Republicans appealing to the Supreme Court to impose a restriction on the sovereign power of the states, let alone to create more of that hated “red tape” that ties the hands of managers.

Conservatives for decades now have criticized the Supreme Court for the Roe vs. Wade decision that short-circuited the policy evolution that was taking place in the country on the issue of abortion, and for legislating from the bench.

How ironic to see conservatives availing themselves of the very same tactic.

Contact Tom Troy at tomtroy@theblade.com419-724-6058, or on Twitter @TomFTroy.

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