[rayiner]

If the Supreme Court overrules Abood in Janus, that'll be the Court doing its job to invalidate statutes that infringing Constitutional protections. Here, where there was no Constitutional concern, the Supreme Court did its job to give effect to a more specific Act of Congress (the FAA) over the more general policy in a different statute (the NLRA).

[sykh]

It is unreasonable in my opinion to consider Janus a constitutional issue. It's not a free speech issue even though it has been popularly cropped as such. People who benefit from collective bargaining ought to help pay for it.

I'm not a lawyer and you'll be able to cite a thousand cases to my one. My sister's neighbor is on the state Supreme Court where I live. He's said to me that a good lawyer can argue any case and cite a bunch of reasons to support his/her case.

For me the case is simple. The collectively bargained rules apply to everyone in the workplace. As such those who benefit from said bargaining ought to pay for it. This has been an established practice for many, many years. Each state has the right to negate this and many have enacted misnamed right to work laws. There is no compelling reason to change the current practice. Janus' speech is not currently threatened and the greater public interest should be the one that prevails. It won't though.

[mmt]

> It is unreasonable in my opinion to consider Janus a constitutional issue.

I'd agree with you if it weren't for the fact that this is about the government and government employees everywhere you look.

I never understood how we as a society and how the labor union movement could tolerate the existence of public employee unions in the first place, as they end up intermingling two otherwise very distinct worlds, as I believe has happened here.

What you call "collective bargaining" in this case I could call "pure political pressure", since the "bargaining" is against politicians.

That sounds awfully Constitution-ey to me.

[sykh]

Government is an employer. With the exception of the military employees have a right to unionize subject to certain constraints. Why distinguish between public vs. private? Why shouldn’t a union be political? Don’t workers have a right to gather in a group and be political? Government workers should be excluded from this activity?

Janus is not really about free speech. It’s an attempt to destroy unions by letting people benefit from collective bargaining without paying for it. It’s called the free rider problem.

[mmt]

> Why distinguish between public vs. private?

Because one is the government and the other isn't. That's my whole point about it being reasonable that this is a Constitutional issue.

There's also the, arguably separate, issues of incentives and who ultimately pays. In the case of private employers, it is, presumably a powerful few trying to exploit the labor of the many. In the case of government, it's the taxpayer/voter who is ultimately being bargained "against".

What are public employee unions trying to prevent? The exploitation by the many (voters) of the labor of the few? That seems wholly unreasonable to me.

> Why shouldn’t a union be political? Don’t workers have a right to gather in a group and be political? Government workers should be excluded from this activity?

(Again, not a union, but a public employee union:)

Because they are, in effect, circumventing the normal political process. By using the power to strike, they're seizing power from the voters.

[sykh]

A public employee union is not the government. With limited exceptions being a public employee does not mean you forfeit your rights. There should not be distinction between public employee union and private employee unions. If workers come together to bargain as a unit then they should be allowed to do so wether they are public employees or not.

Unions do not circumvent the normal political process. They are not seizing power from voters. Your view appears a bit extreme.

[mmt]

This response strikes me as mainly "truth through repeated assertion", without any refutation.

> A public employee union is not the government.

I'm not suggesting it is, as such. It is, however, made up of the people who operate the "machinery" of government, and it's the government witholding the dues from the paycheck that funds this union, so, again, of Constitutional significance.

> There should not be distinction between public employee union and private employee unions.

And I say there should. There's my assertion :)

> Unions do not circumvent the normal political process. They are not seizing power from voters. Your view appears a bit extreme.

They may be extreme, but that doesn't make them invalid on their face. I don't have a vested interest here, either.

Here's my vision of public employee unions not circumventing the normal political process:

Instead of "negotiating" with the power to strike, they can just go to the voters (and elected representatives) and campaign for their share of the tax dollars (or working conditions or whatever other legislation), just like every other special interest.

[chimeracoder]

Janus is about a case in which a person is being forced to pay money out of his paycheck to a group who directly lobbies for policies that he does not support.

> Why shouldn’t a union be political?

By that argument, why shouldn't the government force you to donate money to political advocacy groups that it chooses, whether or not you support the group's agenda?

Heck, what if your employer decided that a portion of your paycheck would be deducted as a mandatory donation to either the Democratic or Republican party, as part of the terms of your employment?

[s73v3r_]

"Janus is about a case in which a person is being forced to pay money out of his paycheck to a group who directly lobbies for policies that he does not support."

And also negotiates on his behalf for better working conditions and pay.

At the end of the day, that person wants all the benefits of being in the union (enhanced negotiating power, benefits, etc), without any of the cost.

[chimeracoder]

> And also negotiates on his behalf for better working conditions and pay.

Sounds like he doesn't believe that they do, and would prefer to be left out of the bargaining unit.

> At the end of the day, that person wants all the benefits of being in the union (enhanced negotiating power, benefits, etc), without any of the cost

There's literally no evidence that he wants the union to provide any of that.

[rayiner]

The issue is that public unions are highly political animals. Being forced to fund them, just to have a government job, is akin to being forced to donate to a political party. We're not talking about neutral entities just looking out for worker's rights, but partisan entities typically in bed with the Democratic party.

[sykh]

There is no distinction between public employee unions and private employee unions. People are not forced to join unions. They are, for the time being, in some states required to pay for fair share dues to cover the costs of collective bargaining, grievances, and other administrative costs. People who join the union can get a refund of the portion of their dues that go to political activities.

Since you are making a distinction about public vs. private unions it appears that this is not a constitutional issue. It seems to be one where you don’t like that they generally endorse and support one party over the other. There are very few entities that are neutral. All sufficiently large entities become political to some degree.

[chimeracoder]

> People are not forced to join unions.

This is completely false. People absolutely are forced to join unions.

Furthermore, the overwhelming majority of union members - over 90% - never voted in a certification or authorization election. That means that, even if they're members of the union, their membership cannot in se be considered an endorsement of the union by the bargaining unit. Because it's all-but-impossible to successfully decertify a union in practice[0], it's not uncommon to have the majority of employees oppose union membership, but still be compelled into membership.

> They are, for the time being, in some states required to pay for fair share dues to cover the costs of collective bargaining, grievances, and other administrative costs

People within the bargaining unit are usually forced to pay dues whether or not they are members.

[0] The NLRB has the power to overturn the results of decertification, and a very strong incentive to do so. In addition, unions have learned that they can change the definition of the bargaining unit after an election is held in order to invalidate the election retroactively.

[s73v3r_]

Why is it that conservatives, when discussing any other aspect of a job (pay, working conditions, abuse, etc) will say that "you have a choice; you don't have to take the job," but when it comes to unions, suddenly everyone is forced?

[rayiner]

When it comes to public unions the "unconstitutional conditions" doctrine comes into play. The Supreme Court has long held that the government cannot indirectly infringe free speech rights by imposing conditions on government employment, such as requiring employees to contribute to or join a particular political party. As Rehnquist pointed out, those cases are "indistinguishable" from situations where public employees are required to join particular unions. The public unions in Janus, for example, which are given special status and powers by state law, are nothing more than adjuncts of the Democratic party.

[chimeracoder]

> Why is it that conservatives, when discussing any other aspect of a job (pay, working conditions, abuse, etc) will say that "you have a choice; you don't have to take the job," but when it comes to unions, suddenly everyone is forced?

Why are you asking me? Go find some conservatives and ask them.

[rayiner]

> Since you are making a distinction about public vs. private unions it appears that this is not a constitutional issue.

Private entities can limit free speech all they want; public entities cannot.

[sykh]

AFSCME is not a public entity. NEA is not a public entity. These unions do not in any way limit speech.

[dctoedt]

> the Supreme Court did its job to give effect to a more specific Act of Congress (the FAA) over the more general policy in a different statute (the NLRA).

Disagree with your ipse dixit labeling. The FAA is broad and general, at least according to SCOTUS precedent, covering all contracts between all parties, covering all types of conduct in all industries, as long as "commerce" is involved. In contrast, NLRA § 7 was targeted to one specific category of contractual parties, namely employees and employers, and protected employees' right to engage in one specific type of conduct, namely concerted activity in two specific areas, namely (1) wages and (2) the terms and conditions of employment.

Moreover, as Ginsburg's dissent correctly pointed out, as the later-enacted statute, § 7 implicitly overruled anything to the contrary in prior legislation — because it's risible to think that Congress, in enacting a court-enforceable right to concerted action by employees, intended to allow the very target of employees' concerted action, namely the employer, to unilaterally strip away that right as a practical matter, whether by insisting on a no-class-action arbitration provision or by any other means.

I'm reminded of a conversation I had many years ago as a law student: Knowing little (then) about litigation, I innocently asked a litigation partner: "A nonsuit [a unilateral dismissal of a case in Texas state court] can only be filed by the plaintiff, right, and not by the defendant?" He laughed and said "Right; otherwise I'd be hurrying back to my office and dictating a whole lot of defendants' nonsuits." But now under this SCOTUS decision, employers get to do essentially much the same as a defendant unilaterally dismissing a plaintiff's case, without so much as a by-your-leave to a court or anyone else.

[rayiner]

I agree that the characterization of which is more specific is the hairiest part. To me, the main issue is that the NLRA Section 7 does not address contracts specifically. One can imagine lots of things that have an incidental effect on exercising the right to bargain collectively; I don't think the NRLA can be read as preempting all of those things.

[dctoedt]

> One can imagine lots of things that have an incidental effect on exercising the right to bargain collectively; I don't think the NRLA can be read as preempting all of those things.

I dunno about that — my guess is that Congress intended a heavy presumption: Anything that materially diminishes the right to concerted action is unlawful. I know, materiality will often be hotly contested. Here, though, an employer's ability to unilaterally take away one of employees' key enforcement weapons, viz., the class action, seems pretty freakin' material.