Lose Your Freedom, Then Forfeit Part of Your Paycheck?

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This week, Judge Jon O. Newman of the Second Circuit Court of Appeals rebuffed a union lawyer who claimed a New York law authorizing Big Labor
This week, Judge Jon O. Newman of the Second Circuit Court of Appeals rebuffed a government lawyer for claiming a New York law that authorizes Big Labor “exclusivity” over day-care providers does not prevent the providers from negotiating personally with public officials over their terms of reimbursement. The two other judges on the panel concurred with his assessment. Image: National Law Journal

For decades, Right to Work supporters have known government-authorized “exclusive” union representation turns dissenting employees into Big Labor’s “captive passengers.” The employees’ personal liberty is denied.

Legislation that grants agents of private organizations, known as unions,  to exclusively negotiate with a business or public employer on matters of employees’ pay, benefits, and work rules takes away the freedom of employees to bargain on their own behalf.

On August 29, the three judge panel hearing oral arguments in Jarvis v. Cuomo concurred with Right to Work supporters’ longtime position on negative impact of union contract “exclusivity.”

National Right to Work Legal Defense Foundation attorneys represent the Jarvis plaintiffs who run home day-care businesses and filed the case in part to overturn a New York law allowing  AFSCME Local 1000 agents to act for every day care provider in the state-established bargaining unit with the New York Office of Children and Family Services.

New York State’s counsel Frederick Brodie insisted corralling people into the CSEA union “exclusivity” arrangement with the New York State does not amount to an infringement of the plaintiffs’ freedom of association.

However, Law 360 Reporter Pete Brush noted that Brodie “ran into pushback on that logic from all three judges.” The judges said that because the day care workers are bound by CSEA Local 1000’s bargaining in Albany, their relationship with the union is clearly not “negligible,” as Brodie tried to claim.

Judge Jon Newman responded, “For you to tell us they’re free to negotiate … what are they going to negotiate about?”

Newman and his colleagues agreed with National Right to Work Foundation attorney Bill Messenger, the plaintiffs’ counsel, that government-promoted “exclusivity” tramples the freedom of association of day care providers.

Unfortunately, they also suggested (incorrectly, in the plaintiffs’ view) the U.S. Supreme Court’s 1984 ruling in Minnesota v. Knight gives state lawmakers carte blanche to grant union officials “exclusive” representation dominance over day care.

Fortunately for home-base day care providers in New York and across the U.S., they can’t be compelled to bankroll unwanted, monopolistic union agents thanks to the Right to Work Foundation’s 2014 Supreme Court victory in Harris v. Quinn. The Harris decision prohibits the extraction of forced union fees from home care providers of all kinds.

Meanwhile, millions of employees in private businesses and public agencies in states that still lack Right to Work protections continue to face a regime in which they lose their freedom to negotiate personally over their own working conditions and are forced to give up a portion of their paychecks to their designated “exclusive” union bargaining agents.

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