Legal brief: SCOTUS ruled that public sector union activities are political in nature, “official time” arrangement mandates taxpayer support for union politics

Austin, TX (March 2, 2023) – The National Right to Work Legal Defense Foundation has just submitted an amicus brief in Roger Borgelt v. City of Austin, a case before the Texas Supreme Court. The case challenges a scheme in which the City of Austin directs taxpayer dollars to Austin Firefighters Association (IAFF) union officials to conduct union business on so-called “official time.”

The petitioners, including the State of Texas, maintain that this arrangement violates the Texas Constitution’s Gift Clauses, which forbid payouts of taxpayer funds that do not serve a legitimate public purpose. The case is currently on appeal from the Texas Third Court of Appeals.

The Foundation’s brief argues that the U.S. Supreme Court’s ruling in the Foundation-won 2018 Janus v. AFSCME case shows why the “official time” scheme runs afoul of the Gift Clauses. The High Court ruled in Janus that forcing public sector workers to fund any union activities as a condition of employment violates the First Amendment, and that union dues can only be deducted from a public sector worker’s paycheck with his or her freely given consent.

Requiring taxpayers to fund union activities “conflicts with the Supreme Court’s reasons for holding in Janus that it violates the First Amendment to require public employees to subsidize union activities,” the brief says.

Landmark Janus Decision Shows How Union Bosses Use “Official Time” to Prop Up Union Politics

The Foundation points out in its amicus brief the Janus Court’s holding that union monopoly bargaining activities “constitute speech and petitioning on matters of political…concern,” and that by funneling taxpayer money into such speech “the City is effectively paying individuals to lobby the City for a private advocacy organization and its members.”

“The notion that this political advocacy predominantly serves a public purpose, as opposed to predominantly benefiting the private organization, is untenable,” the brief reads.

The brief also refutes an assertion by the Third Court that “official time” payments made by the city are actually part of union officials’ compensation for their normal job duties. This defies Janus’ reasoning that public employees who are also union officials “do not act as government agents pursuing their official job duties when they act as union officials.”

“For example, in granting paid leave to employee Bob Nicks to act as the Union’s president, the City is not paying Mr. Nicks for his services as a firefighter or as a public servant,” the brief explains. “The City is paying Mr. Nicks for his services as an agent of a private organization—the Union—in violation of the Gifts Clauses.”

The brief also counters the lower court’s finding that taxpayer subsidies for “official time” are needed to maintain harmonious relations with the union. Just as the Supreme Court’s Janus decision rejected that argument as a permissible reason for forcing workers to subsidize union activities related to monopoly bargaining, here similarly union officials can also “exercise their powers as exclusive representatives without the taxpayer subsidy of [official time],” says the brief.

Moreover, the Foundation’s brief explains that this union argument is troubling on a much deeper level: “If respondents contend that Union officials would disrupt City services if they did not receive association business leave, that would make the benefit akin to the City paying protection money” to union officials, reads the brief.

Union Bosses Are Not Entitled to Public Funds to Pursue Union Interests

“The Texas Supreme Court must recognize that union officials are not entitled to a slice of taxpayer funds to ‘bargain’ against public interests,” commented National Right to Work Foundation President Mark Mix. “Texas’ Gift Clauses forbid the payout of public funds for activities that don’t have a tangible public benefit, and it’s hard to think of an arrangement that violates the Clauses more plainly than letting union bosses pursue private union business on the taxpayer dime.”

“While Janus now protects public employees around the country from being forced to fund union activities and speech against their will, unfortunately many states and municipalities across the country permit union bosses to subsidize those same inherently political activities using direct payment of tax dollars,” Mix added. “If union bosses cannot convince rank-and-file workers to voluntarily fund such activities as Janus requires, they should re-examine their priorities, not seek to force taxpayers to pay for what public employees won’t.”

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year.