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March 24, 2018

3/6/2018 7:30:00 AM
Oh, pity the poor unions.

It seems like unions are scared to death that the U.S. Supreme Court is going to declare fair share fees unconstitutional.

Fair share fees happen when a worker who can't be forced to join a union is instead forced to pay a fee to the union, you know, to cover expenses related to collective bargaining. It's considered fair because unions are generally compelled by law to bargain for every eligible worker in a bargaining unit, whether that person belongs to the union or not.

The catch is, and it's not much of a catch, the unions can only use those fees for costs associated with actual bargaining, not politics. If they did use the money for politics, that would directly violate the free speech rights of those paying the fair share fees.

Of course, this has long been recognized to be a joke. Unions use that fair share money for politics, and they always have.

As The Wall Street Journal has pointed out, many unions use those dollars to pay for membership meetings where politics are discussed along with collective bargaining, as well as for organizing and litigation and lobbying, all of which are political activities.

Plus, instead of demanding fair share fees, unions could argue to change the law so they could exclusively represent only their members, but they usually insist on just the opposite because it gives them more power in the workplace.

What's more, many of the things the unions achieve in collective bargaining don't necessarily help all members.

Seniority clauses, for example, work against younger workers who might wish to bargain for their own cause based on merit rather than seniority. With fair share fees, they are paying to keep themselves on the low rungs of the ladder until they grow older, even when they are more productive and skilled.

Now along comes some workers who take the arguments against fair share fees even further, and this scares the daylights out of the unions. These new challengers say even pure bread-and-butter collective bargaining is political activity when the employer is the government.

That's because when they negotiate raises and pensions and health benefits, those things cost taxpayer dollars, and thus require political decisions, and so the very nature of achieving raises and benefits in public-sector collective bargaining is inherently political.

They have a good chance of prevailing on this question in the Supreme Court, and so two unions in Wisconsin have launched a counter thrust by saying that, if collective bargaining is political speech, then the government cannot squash or limit the content of that speech.

That is, of course, exactly what Act 10 did by severely limiting the scope of public employee bargaining and removing from the bargaining table many workplace items that used to be routinely negotiated.

If collective bargaining is political speech, then not allowing unions to bargain on those issues violates their free speech, so the union argument goes.

Well, nice try.

It may well be that public sector unions are correct in characterizing collective bargaining as political speech, but that doesn't mean the government is trampling on free speech and associational rights by restricting what is bargained.

The truth is, the state is not under any obligation to provide for collective bargaining at all. The U.S. constitution protects individual rights, not collective rights such as union bargaining.

Certainly workers have the constitutional right to associate in unions, but statutorily blessed collective bargaining by that freely associating group confers special status upon that association.

Thus it is a privilege, which does not have to be granted and that can be taken away or limited. Such as in Act 10.

Here's how a federal court put it in Atkins vs. City of Charlotte (thanks to the Daily Signal for the citation): "All citizens have the right to associate in groups to advocate their special interests to the government. It is something entirely different to grant any one interest group special status and access to the decision making process."

The interesting thing here is, the Wisconsin Supreme Court has already ruled on this matter in an opinion written by justice Michael Gableman:

"No matter the limitations or 'burdens' a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation. The restrictions attached to the statutory scheme of collective bargaining are irrelevant in regards to freedom of association because no condition is being placed on the decision to participate. If a general employee participates in collective bargaining under Act 10's statutory framework, that general employee has not relinquished a constitutional right. They have only acquired a benefit to which they were never constitutionally entitled."

Well said.

So, if that opinion exists, why are the unions filing this lawsuit?

That's answered in a word: Politics.

Gov. Scott Walker is in what many observers believe to be a tough re-election campaign, and so the unions want to raise the Act 10 issue again in voters' minds.

Never mind that both the Act and its results seem to be popular. Perhaps they are trying to fire up their base, but it could backfire and remind wavering voters why they have elected Scott Walker three times since 2010.

Can you say Wile E. Coyote?

Reader Comments

Posted: Tuesday, March 6, 2018
Article comment by: Craig Strid

When I first started on the police Department we were not unionized and if we needed legal representation we could not afford it. During those years we did not make a lot of gains. But when we finally got the majority of the vote to unionize and we finally gained confidence to bargain and it put us on a higher playing field. During the older days a union job was a desired goal in the middle class. Then when Walker introduced Act 10 under the false pretense of lowering the state budget. He created jealousy and division among the middle class. Business and corporate alike glistened with joy. Walker admitted when questioned by Congress that Act 10 had nothing to do with the state budget. That was one of his Repubican lies and deception. It was his ploy to dismantle the unions and middle class jealousy helped to destroy a middle class benefit. Because of his lies and deception I personally cannot support Walters career.

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