Trump Administration Files Anti-Union Brief in Janus Case

The Trump administration Justice Department has formally told the U.S. Supreme Court to kill union “agency fees” for public workers who are in union workplaces but not union members, effectively making every state and local worker in the U.S. a potential “free rider.”

If the court agrees with Trump and the anti-worker National Right to Work Committee in Janus v AFSCME District Council 31 – and unions expect it to do so – that would convert every state and local government into a so-called “right to work” shop. The committee, a right wing corporate front group, recruited a dissenting Illinois worker, Mark Janus, to be its front man in the case, which the justices will hear next year.

Federal data show unions have approximately 6 million state and local government worker members, and represent another 900,000 people who, like Janus, are in union shops but are not members.

AFL-CIO President Richard Trumka blasted the Trump government’s stand. “While President Trump boasts his support for working families, his administration is advocating a position in the Supreme Court that disregards decades of settled law and threatens our livelihoods. Yet again, his actions are failing his rhetoric and making clear he has no intention of following through on his commitments to working people.

“For more than 40 years…the law recognized unions and employers have the freedom to negotiate agreements under which everybody contributes his or her fair share. But now the Trump administration is urging the court to reverse this precedent and undermine working people and unions. This is a shameful political payback to reward those who seek to do working people harm. Arguing against our freedoms at work is not what working people expect of our government. Actions speak louder than words Mr. President.”

The court’s 6-3 majority legalized the agency fees in the 1975 Abood decision, but the Trump Justice Department faults that. Like the right-to-work crowd, the Justice Department says Abood violates workers’ constitutional freedom of speech rights by forcing them to pay agency fees for union speech they disagree with.

Agency fees cover only costs of contract bargaining and enforcement, such as grievances. But the Trump government’s brief retorted that when it comes to the public sector, everything is political and thus covered by the 1st Amendment’s freedom of speech clause.

“The decision failed to apply to collective bargaining the principles of free expression and free association it properly held prohibit coerced financial support for political candidates. Abood thus ultimately endorsed what it simultaneously prohibited: Compelled subsidization of union speech for political or ideological causes,” Trump’s Justice Department said.

“The decision relied on an empirical assumption – that exclusive representation in the public sector” by the union of the workers “requires mandatory agency fees this court has since rejected,” its friend-of-the-court brief says. Rejections came in two more recent cases, involving smaller groups of public workers, whom the justices said were semi-public instead.

The justices let the government file the friend-of-the-court brief. The Justice Department is not part of the upcoming argument of the case. But the justices may pay attention to this brief, anyway. That’s because the court tied 4-4 last year on the identical Friedrichs case.

Now, with Trump-named Supreme Court Justice Neil Gorsuch added, union leaders expect to lose, 5-4. AFSCME is already re-recruiting its members to sign them up despite Janus.

“In any other circumstance, it would be outrageous to demand the benefits of a com-mon enterprise without paying one’s fair share. Union representation is no different. Eliminat-ing fair share fees protects people who want to get something for nothing and as a result, starves unions,” Economic Policy Institute attorney Celina McNicholas said in a blog.