March 2018 SCOTUS hears case aimed at crippling labor unions
By SHERRY HALBROOK
PEF members joined rallies in February to express their solidarity and passion for their unions in the face of a U.S. Supreme Court case, Janus v. AFSCME Council 31, challenging union rights that was argued February 26 in Washington. The court will issue its decision before late June when its current session ends.
PEF also provides a Janus toolkit explaining the implications and background of the case to its members.
The case was originally brought by Illinois’ billionaire governor, Bruce Rauner, a Republican who wanted to challenge the Illinois state law allowing public employee unions to charge fees in lieu of dues to employees they represent that choose not to join the union and pay dues. Rauner’s case was dismissed because he is not directly affected by the law, so a social worker, Mark Janus, who is affected by it, stepped in and became the plaintiff.
Janus claims that he disagrees with positions the union takes in bargaining for a contract. Therefore, he should not be required to pay fees for the union’s services. He claims that paying the fees infringes on his First Amendment right of free speech.
Unions are required by law to provide services to everyone in the bargaining units they represent, and they argue it is unfair to allow some of those employees to receive those services for free, since that would essentially require dues-paying members to pay for the union’s services to non-members as well as themselves.
The unions further argue that paying fees to the union does not prevent the non-members from speaking out publicly when they disagree with a position the union takes, or campaigning against ratification of a tentative contract they don’t support.
A similar case, Friedrichs v. California Teachers Association, came before the U.S. Supreme Court a year ago and all nine justices at that time heard and considered the arguments. But before they could render a decision, Justice Antonin Scalia died. The remaining eight justices split evenly, 4-4. That meant the court’s previous decision on the underlying issue, which was rendered in a 1977 case called Abood v. Detroit Board of Education, remained the determining precedent, and that decision said it is constitutional to allow unions to charge fees to non-members they must represent.
Since then, President Trump appointed Neil Gorsuch to the court, and he was the only justice hearing the Janus case who has not previously expressed written opinions on the legal issues. Nevertheless, Gorsuch asked no questions during the oral arguments February 26.
Non-members (called feepayers) are a minority in PEF and other public-employee unions, and the amount of their fees constitute a relatively small part of the unions’ incomes. The feepayers have the right to request and receive reimbursement of the percentage of their fees that the union used for lobbying and any other expenses the courts have previously deemed “non-chargeable.”
Since, ultimately, the amount of a union’s net income from feepayers, is usually not a make-it-or-break-it part of the union’s annual budget, why is the Janus case so important? Because it opens the door to many dues-paying members deciding to leave the union, cease paying dues and imagine that they will still receive the same level of bargaining and other services.
When the Janus case was heard Justice Ruth Bader Ginsberg quickly honed in on that point: “It drains (the union) of resources that make it an equal partner with the government in negotiations. And then you’ll have a union with diminished resources, not able to investigate what it should demand at the bargaining table, not equal to the employer that it faces.”
Justice Elana Kagan asked Illinois Solicitor General David L. Franklin, “What would the difficulties be, if … the Court were to overrule Abood?”
“What we know is that tangibly, when these kinds of obligations of financial support become voluntary, union membership goes down, union density rates go down, union resources go down. We’ve seen it again and again,” Franklin said. “We also know that, intangibly, there are plenty of studies that show that when unions are deprived of agency fees, they tend to become more militant, more confrontational, they go out in search of short-term gains that they can bring back to their members and say stick with us.”
Chief Justice John Roberts asked if the need to attract voluntary payments would “make the unions more efficient, more effective, more attractive to a broader group of their employees? What’s wrong with that?”
Franklin said, “The studies that I’ve read indicate that, yes, there can be an initial first flush of mobilization and organizing when something like this gets taken away, but that over the long term, human nature and basic economics dictate that the free-rider problem will become endemic and, not only that, but contagious, because if I’m an employee and I stick with a union and others over time decide not to, my fees and my dues are going to go up and up and up and the pressure on me to make the same choice will increase as well.”
Justice Kagan came back to her issue of the potential ramifications if the court finds for Janus.
“I don’t think that we have ever overruled a case where reliance interests are remotely as strong as they are here,” she said. “Twenty-three states, the District of Columbia, Puerto Rico, all would have their statutes declared unconstitutional at once. Thousands of municipalities would have contracts invalidated. Those contracts probably cover millions, maybe up to over 10 million workers. So property and contract rights, the statutes of many states and the livelihoods of millions of individuals (would be) affected all at once. When have we ever done something like that? What would be the justification for doing something like that?”
The attorney for Janus replied it was justified because it would correct what he argued is a constitutional injustice.
“You’re basically arguing, ‘Do away with unions,’” Justice Sonia Sotomayor said.
AFSCME Council 31, the defendant in this case, issued a statement before the case was heard, pointing out that destroying organized labor is, in fact, the real source and intention of the Friedrich’s and Janus cases.
“For years, billionaire CEOs and corporate special interests have rigged the system to amass wealth and power for themselves at the expense of working people. Those same special interests are now backing Janus v. AFSCME Council 31, which threatens to make things even worse by taking away the ability of working people to come together in strong unions,” the union said.
“The National Right to Work Committee is part of a network funded by corporate billionaires to use the courts to rig the rules against everyday working people,” said PEF President Wayne Spence. “For decades, the corporate CEOs and billionaires funding this case have used their massive fortunes to pay politicians and corporate lobbyists to chip away at the freedoms people in unions have won for every single one of us. And now they want the highest court in the land to take away our freedom to come together to protect things our families need: a living wage, retirement security, health benefits, the ability to care for loved ones and more.”
American Federation of Teachers President Randi Weingarten put it this way: “This case isn’t about Mark Janus. It’s a ruse funded by the Kochs, the Bradleys, the DeVoses and other anti-union oligarchs to deny working folks the opportunity for a better life. Unions help make possible what would be impossible for individuals acting alone: living wages and a decent retirement, safe and welcoming public schools, affordable college and health care, and a voice in our democracy. They’re attacking us because they see a strong labor movement as a threat to their wealth and power.”