Supreme Court could deal blow to unions
Gorsuch holds key to case that saw 4-4 deadlock in 2016.
Public-sector unions got a reprieve at the U.S. Supreme Court two years ago. Their time may be running out.
In 2016, the court appeared poised to let government workers who object to joining a union refuse to pay part of the cost of representation. Then Justice Antonin Scalia died unexpectedly, leaving those opposing mandatory fees one vote short of a majority.
The issue will be back at the Supreme Court in arguments Monday, and union advocates are bracing for the defeat many expected two years ago. With fellow conservative Justice Neil Gorsuch now in Scalia’s seat, the court again could be ready to rule that the First Amendment lets public-sector workers opt out. The case could affect 5 million workers in about two dozen states that allow public workers to be required to pay fees.
“This case is the most important case for workers’ rights in a generation,” said Jacob Huebert, a lawyer representing Illinois child-support specialist Mark Janus, who is challenging the fees. “You shouldn’t have to check that First Amendment right at the door when you take a government job.”
The clash is as much about the value of unions as it is about constitutional rights. Union leaders say the ultimate goal of those pressing the case is to undermine the clout of the labor movement.
The case “is about power,” said Randi Weingarten, president of the 1.7-million member American Federation of Teachers. “They’re attacking us because we fight for a better life for working folks, and they see that fight as a threat to their political and economic power.”
For the nine justices, the case is also about the power of legal precedent. They are considering overturning a 1977 ruling that said states can let public-sector unions demand so-called agency fees from non-members, as long as the money covers representational work like collective bargaining and not ideological or political activities like lobbying.
That 1977 ruling, known as Abood v. Detroit Board of Education, said agency fees could promote “labor peace” by buttressing a union’s status as the exclusive representative of a workforce. The court said making the fees optional would let employees become “free riders” who benefit from collective bargaining without paying for it.
Right-to-work groups contend that the Abood ruling relies on a false distinction between lobbying and collective bargaining. Backed by the Trump administration, those advocates say public-sector unions are engaging in political speech when they negotiate with the government. And the groups say workers have a constitutional right not to associate themselves with that speech.
Janus, a 65-year-old child support specialist who works in Springfield, says he disagreed with the positions his union — the American Federation of State, County and Municipal Employees, Council 31 — took during 2015 contract negotiations with the state.
“The state has billions with a ‘b’ in unpaid bills,” he said in an interview. “They’ve got a hundred billion with a ‘b’ in unfunded pension liabilities. And AFSCME is trying to negotiate for more wages and benefits to the tune of another $3 billion, and they were willing to go on strike for it. And I just couldn’t support that.”
Janus was one of three employees who took over a lawsuit filed against the union by Illinois Gov. Bruce Rauner, R.
A judge said Rauner didn’t have the legal right to challenge the Illinois law, leaving the employees to press ahead. A federal appeals court eventually ruled against Janus, saying Abood remained valid law. Illinois Attorney General Lisa Madigan, D, is defending the state law alongside the union.
Madigan said in court papers that agency fees “constitute only a limited impingement on dissenting employees’ First Amendment interests.” She also said the logic behind Abood remains sound.
“Agency fees are justified by the state’s interest in dealing with a fairly and adequately funded exclusive representative,” she argued. “Both Congress and this court have long recognized that exclusive representation contributes to stable and effective labor-management relations.”
By all appearances, agency-fee supporters will face an uphill battle in making that argument. The 2016 case ended with a 4-4 split, indicating that four justices had voted to overturn Abood. Assuming no minds have changed, Gorsuch will now cast the deciding vote, with a decision likely by June.
“It’s reasonable to assume Justice Gorsuch is in the driver’s seat in this case,” said Roman Martinez, a Washington appellate lawyer at Latham & Watkins.