On Wednesday, the Supreme Court ruled 5-4 in Janus v. AFSCME that labor unions representing employees of state and local governments may not force nonmembers to pay a so-called “fair-share” union fees. Led by Justice Samuel Alito Jr., the court ruled that the collecting of an agency fee from government employees who decide not to join a union is a violation of the First Amendment. The ruling thus overturns a Abood v. Detroit Board of Education, which set a precedent in 1977 allowing unions representing public-sector employees to exact fees from non-union members to cover nonpolitical union activities such as collective bargaining. The decision was announced just hours after Justice Anthony Kennedy announced his retirement, which will be effective this fall.

“States and public-sector unions may no longer extract agency fees from nonconsenting employees,” wrote Alito for the majority. “This procedure violates the First Amendment and cannot continue.”

The majority in the decision said that the Abood was a wrong decision based on poor reasoning. "Neither an agency fee nor any other payment to the union may be deducted from the nonmember's wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay," Alito wrote. "By agreeing to pay, nonmembers are waiving their First Amendment rights and such a waiver cannot be presumed."

“Fundamental free speech rights are at stake,” Alito wrote.

Justice Neil Gorsuch, who was nominated by President Donald Trump, was reportedly the deciding vote in the case, which had been deadlocked 4-4 in a similar case in 2016 after the death of Justice Antonin Scalia. Siding with Alito this time for the majority were: Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Gorsuch. The liberal wing of the court — Justices Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg  and Stephen Breyer — all of whom were nominated by Democrats -- were dissenters.  

In Janus v. AFSCME, the case focused on Illinois state law, which, like 22 other states, allows government  unions to collect a “fair-share fee” from employees. A state child support specialist, Mark Janus, argued that he did not wish to pay $45 from each paycheck to the American Federation of State, County and Municipal Employees (AFSCME) Council 31. Janus argued that the practice violates his First Amendment rights because it forces him to support the union’s messaging. For its part, AFSCME claimed that it needed the fair-share funds to offset the costs of negotiating working conditions for all employees, regardless of whether they are union members or not. According to the powerful union, state laws allowing unions to collect these fees are justified in order to prevent a"free ride" to non-members. 

In their dissent, Ginsburg, Breyer and Sotomayor joined Kagan in acknowledging that the ruling will have “large-scale consequences” for funding labor unions. “Public employee union will lose secure sources of financial support,” Kagan wrote said. “State and local governments that thought fair-share provisions furthered their interests will need to find news ways of managing their work forces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.”

In a friend of the court brief, 15 public sector unions warned the high court that eliminating fair-share fees would gut public sector unions. “The elimination of fair-share fees would create an all-or-nothing choice for the workers whom unions represent: pay union dues or pay nothing but still receive the benefits a union provides,” they wrote. “In that world, many rational employees will choose to become free riders.”

President Trump tweeted his approval of the court's verdict, tweeting that it was a "big loss for the coffers of the Democrats!" 

Where Justice Kagan agrees with Democrats

In the dissent, in apparent agreement with Democrats that the decision will mean shortfalls in union funding, Kagan wrote:

“Today, the Court succeeds in its 6-year campaign to reverse Abood. See Friedrichs v. California Teachers Assn., 578 U. S. ___ (2016) (per curiam); Harris v. Quinn, 573 U. S. ___ (2014); Knox v. Service Employees, 567 U. S. 298 (2012). Its decision will have large-scale consequences. Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.

“Rarely if ever has the Court overruled a decision—let alone one of this import—with so little regard for the usual principles of stare decisis. There are no special justifications for reversing Abood. It has proved workable.No recent developments have eroded its underpinnings. And it is deeply entrenched, in both the law and the real world. More than 20 States have statutory schemes builton the decision. Those laws underpin thousands of ongoing contracts involving millions of employees. Reliance interests do not come any stronger than those surrounding Abood. And likewise, judicial disruption does not get any greater than what the Court does today. I respectfully dissent.”

A study by Frank Manzo of the Illinois Economic Policy Institute and Prof. Robert Bruno of the  University of Illinois at Urbana-Champaign showed that Janus may result in a membership reduction among unions representing state and local government employees by 8.2 percentage points (726,000 union members). According to Bruno, this will mean a loss of revenue for the unions and a reduction in their activities.

In the 2016 election year, the political influence of labor unions appeared to be greater than ever. For example, by Election Day, the AFL-CIO contributed $14.6 million to super PACs. The National Education Association donated $18.1 million to super PACs and spent an additional $1.4 million. Meanwhile, the Service Employees International Union donated $19 million. According to the Wall Street Journal, organized labor spent more money on that election than ever before. Overall, labor unions have donated more than $132 million to super PACs and spent an additional $35 million on federal elections. 

Labor unions now have 14.8 million members, according to the Bureau of Labor Statistics. The rate of union membership in the private sector is 6.7 percent, which is nearly a historic low. By comparison, nearly a third of U.S. workers were unionized in the 1950s. 

Reaction from Democrats 

New York state AFL-CIO executive Mario Cilento released a statement decrying the decision in Janus. "Improving the lives of all working men and women is what defines us, not one court case. The Janus v. AFSCME case has always been a thinly veiled attack on the rights of all working people to join together and speak with one voice. New York’s labor movement, with 2.5 million members, will remain strong. In fact, today’s decision will only make us stronger and more determined to fight for better wages, benefits and conditions of employment, as well as for a brighter future for all workers and their families."

Democrats appeared to be enraged by the Janus decision. Rep. Keith Ellison (D-Minn.) sent out a fundraising email for the party, saying "If you steal a Supreme Court seat, you can do just about anything." Ellison, the first Muslim elected to Congress, is the co-chair of the Democrat party. DNC chairman Tom Perez, who served in the Obama administration as Secretary of Labor, wrote an op-ed for USA Today, saying: "Make no mistake: The nomination of Neil Gorsuch was first and foremost about winning the Janus case and taking rights away from workers. For decades, Republicans and their wealthy corporate allies have been chipping away at workers’ rights, weakening unions, and depressing wages — all while giving massive tax cuts to the top 1%."

California Senate President Pro Tem Toni Atkins of San Diego stated that the high court "sided with forces that are waging a direct and coordinated attack on working people and their ability to collectively bargain for better pay and working conditions. Without a doubt, this is a setback for hard-working families and a victory for those who seek to widen the income gap between the very rich and the rest of us."

California Assembly Speaker Anthony Rendon said, “Janus is just the latest weapon being wielded by anti-government billionaires like the Koch Brothers. Once Senate Republicans took the unconscionable course of leaving a Supreme Court seat vacant for a year until it could be filled by Donald Trump, we knew this outcome was likely." 

Lt. Gov Gavin Newsom stated, "The right of workers to organize as unions for fair wages and working conditions is a bedrock principle underpinning America's middle class. I strongly reject the reasoning underlying this ruling..."

 U.S. Sen. Kamala Harris said, "Our country’s success depends on the right of all workers — including teachers, firefighters, peace officers and nurses – to collectively negotiate fair wages, benefits and protections. The Court’s decision today undermines the basic American premise, held up by courts for more than four decades, that if a union represents all employees in negotiating and administering a collective bargaining agreement, then all employees ought to share the costs of that representation. We also cannot ignore that this decision is part of an ongoing trend of the Roberts Court that has repeatedly sided with employers over employees, corporations over consumers, and special interests over vulnerable Americans. Congress must act to bolster the American labor movement that built the middle class of this country. It is up to all of us to fight to protect the ability of working families to make a living wage and pursue the American dream now more than ever.”

A work-around for labor unions

Writing at the Vox website, Harvard law professor Benjamin Sachs and Sharon Block acknowledged the defeat of the labor movement represented by the Janus decision. They claimed that the decision ruled that: “Public sector unions are are now legally obligated to provide representation to workers and yet legally prohibited from requiring anyone to pay for the representation.” They also claimed that the decision is the result of a “sustained attack by political forces determined to destroy the labor movement and undermine the movement's capacity to counterbalance corporate economic and political power.”

However, they suggested a work-around for the public sector unions. “The simplest, and the most effective, move would be for states to change, quite subtly, the accounting system for union dues. Currently, the accounting system works like this: Unions win raises, or wage premiums, for public employees of about 17 percent on average. (That is, unionized public-sector workers make 17 percent more than their non-unionized counterparts.)” The agency feed that were invalidated in Janus, they wrote, represent a about 2 percentage points of the union premium. “Employers pay this 2 percent to workers, but require that the employees immediately pay that money back to the union.”

Block and Sachs wrote that unionized workers receive therefore a 15 percent pay increase but must also pay the 2 percent difference to the union. “Because this 2 percent fee passes through employee paychecks on the way from the public employer to the union, however, the Supreme Court concluded workers were being ‘compelled’ to support union speech; that’s the constitutional problem, as the Court sees it.”

The work-around Block and Sachs suggest would mean that local and state governments should pay the 2 percent directly to the unions, while giving the same 15 percent raise to employees but not channeling the extra 2 percent through employee paychecks. They argue that non-union employees would then have “no possible claim” that they were “compelled to do anything, and thus no constitutional problem.”

 

The Chicago Tribune hailed the decision in Janus. The editors wrote: “If other government workers follow Janus and stop paying “fair share” fees, the ruling likely means organized labor leaders will be able to deliver less money to their political allies – chiefly Democrats.” The Tribune noted that Gov. Bruce Rauner (R) initiated the case that Janus eventually joined as plaintiff. “Rauner is pinning his re-election hopes in part on the claim that he can weaken a Democratic machine which taxes heavily in order to reward its friends in organized labor. He’s counting on the Janus decision to give him momentum.”

“The practice infringed on the constitutional rights of public sector workers who were asked to give up their First Amendment rights as a condition of employment," said Gov. Rauner in a statement. "This decision fairly reinstates those rights.”

The Tribune went on to opine: “We’re intrigued – and hopeful — about the implications of Janus v. AFSCME Council 31. If government workers don’t have to contribute, maybe this begins a reckoning for the political class of Illinois. We’re not great fans of that symbiosis between one party and the public’s workforce. Unions have a vested interest in the taxing-and-spending status quo in Illinois, which in fiscal terms is a disaster.” The paper noted that Democrats have placed enormous debt on the state, which is facing poor employment prospects, poor credit ratings, and a $130 billion state pension deficit. “Those are largely byproducts of the hand-holding between unions and Dems.”

The Belleville-News-Democrat headlined its editorial: “It ain’t free speech when you’re forced to pay for a union’s megaphone.”  The editors wrote that workers won free speech rights, and Illinois taxpayers also saw a win. It noted that state workers represented by AFSCME average $66,000 a year in salary. With benefits, their cost to taxpayers rises to nearly $110,000 per worker. Workers who are not employed by the state average $32,500.

“That political activism by the state employee union benefits the campaign warchests of state leaders. Those same state leaders then bargain the state union contracts. No wonder Illinois state workers are the highest paid in the nation, and we have a state so blue that power can be concentrated for more than three decades in the hands of one Chicago Democrat. Some union leaders expect the ripple effect to kill the labor movement. That's doubtful,” wrote the paper.

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Spero News editor Martin Barillas is a former US diplomat, who also worked as a democracy advocate and election observer in Latin America. His first novel 'Shaken Earth', is available at Amazon.

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