U.S. Supreme Court’s Final Decision of the Term Cripples Unionized Employees
June 27, 2018 | By Rabeh M.A. Soofi
Today, on the last day of its term for the year, the U.S. Supreme Court issued a ruling widely being criticized as a crippling blow to unionized employees, which constitute some of the largest contingents of America’s rapidly vanishing middle class. Affected employees not only include all state governmental workers, but teachers unions, police departments, fire departments, and numerous other public interest industries that have long been infamous for paying employees substandard wages, providing insufficient resources, and eroding budgets beyond what could be considered minimally necessary to perform those duties effectively.
These are the same employees who are generally responsible for providing American families nationwide with the most crucial public services (law enforcement, first response, public education, social service offices, post offices, and other state governmental services.) Unions and the unionization process were the great equalizers that allowed the collective bargaining power of these employees to achieve better working conditions, grievance procedures, and basic benefits in a landscape of reduced budgets and ever-increasing expectations.
30 Second Background of Janus v. AFSCME
Over the years, numerous attempts were made by largely conservative forces (that have long been waging battle against organized labor) to gut unions and cripple the power of unionized employees.
The most recent attempt involved challenging state laws in approximately 22 states that required non-members of employee unions to contribute a portion of fees towards the operation of the union (“fair share fees”), even though they were not dues-paying members.
Through a lawsuit brought by an Illinois child-support worker, Mark Janus, an argument was made that these state laws violated First Amendment / Free Speech rights of the non-members and therefore were constitutionally unlawful.
The case made its way through multiple courts, including the Seventh Circuit Court of Appeals, and finally, June 27, 2018, the U.S. Supreme Court sided with Janus and took the position that mandatory fair share fees were unlawful. It was the U.S. Supreme Court’s last decision for the 2018 term.
A Few Statistics on Unions and Unionized Employees
Before we get into what the decision actually says and what this holds for the future of unionized employees, a few major figures and statistics:
- This ruling overwhelming affects public employees (as opposed to private sector). More than 33% of public sector employees are unionized (less than 7% in private sector). (https://www.bls.gov/opub/ted/2018/utilities-industry-has-highest-union-membership-rate-in-private-sector-in-2017.htm)
- The Bureau for Public Statistics similarly echoes that union membership rates in the public sector are around 34%, so a the decision is going to have impact in eliminating all fair-share fees by the remaining 65% of non-dues paying members. (https://www.bls.gov/opub/ted/2018/utilities-industry-has-highest-union-membership-rate-in-private-sector-in-2017.htm)
- There is evidence that even though most union employees support their union, the overwhelming majority are not dues-paying members. For example, AFSCME Iowa (Council 61) reports that while 83% of the workers support the union, only 29% of them pay dues.
- The highest unionization rates are in protective services (i.e., law enforcement, first responders, child/social protective services) and education/training (teachers) (https://www.bls.gov/news.release/union2.nr0.htm)
- Union members generally earn annually more than non-union members, which suggest that dues-paying members tend to be more senior or in higher/more significant/better-paying positions than non-union members. (https://www.bls.gov/news.release/union2.nr0.htm)
Who is Mark Janus?
- Worked at Illinois Department of Healthcare and Family Services
- Earned $71,000 and the amount in question was $45/monthly agency fee to AFSCME
- His main lawyers are Jacob Huebert, the director of litigation at the Liberty Justice Center and William Messenger, a staff attorney at the National Right to Work Legal Defense Foundation (see more about these anti-union conservative entities, below).
- Brought the lawsuit because he believed that his fair share fees were being misused to pursue political objectives he did not agree with.
What Does the Janus v. AFSCME Decision Mean for Unionized Employees?
- The U.S. Supreme Court essentially takes the position that paying “fair-share fees” is the same thing as lobbying the government / political speech. (AFSCME argued very strongly that collective bargaining was not political in nature, and that union benefits dealt with employment issues, wages, employee benefits, working conditions, etc., and not “political” activity.) U.S. Supreme Court was not persuaded.
- The State of Michigan and 18 other states filed a brief attempting to make the U.S. Supreme Court understand that fair share fees do not go towards supporting political activity, and non-members are already not required to support political activity they do not agree with. (http://www.scotusblog.com/wp-content/uploads/2017/07/16-1466-cert-tsac-michigan.pdf).
- Non-dues paying members will no longer be required to pay fair share fees / agency fees, which is predicted to cut off funding, which will either a) dramatically reduce the footprint of a union without the contributions by fair-share fees, or: b) require dues-paying members to pay more to cover the lost contributions; or c) both.
- Alito’s decision makes it clear that, according to the U.S. Supreme Court, avoiding free-riders, Alito wrote, “is not a compelling interest.”
- Janus is the 3rd case in 5 years on the question of fair share fees to come before the Supreme Court. In 2014, the question came to the high court in Harris v. Quinn, but the justices declined to answer the central question over agency fees’ constitutionality, and instead ruled 5-4 that the petitioners in the case were not public employees. In 2016, the court issued a one sentence opinion on Friedrichs v. California Teachers Association that left the question open.
Tracing the Money:
- Janus’s suit was backed by the Liberty Justice Center and National Right to Work Foundation.
- National Right to Work Foundation previously received $1 million from the Koch Brothers’ Freedom Partners. It is reported that at least three former Koch associates work as attorneys for the NRTWLDF. PR Watch has some more information on NRWF’s ties to conservative networks and the Koch Brothers.
- From IATSE: “The NRTWLDF is a non-profit which is associated with the 501(c)4 lobbying group, the National Right to Work Committee (NRTWC), as well as the National Institute for Labor Relations Research. In 2012, the three groups, which are dedicated to destroying unions, pulled in $25 million. The founder of the NRTWC, Reed Larson, was a leader in the far right John Birch Society. They traffic in a variety of far right conspiracy theories, many of them derived from antisemitism, opposed to the Civil Rights movement, and have an extreme pro-market approach. The John Birch Society cleaned up these ideas by making them origins seem less obvious, and wrapped them up in an ultra-patriotic images and slogans. Larson was in the same John Birch Society chapter with Fred Koch (the father of the infamous Koch brothers Charles and David), and the NRTWC has received significantly amounts of money from the Koch family.” (https://www.iatse728.org/blog/meet-the-money-backing-mark-janus-and-his-case-v-afscme)
Reactions from Public Sector Union Representatives
- AFSCME President: “This case is yet another example of corporate interests using their power and influence to launch a political attack on working people and rig the rules of the economy in their own favor,” Lee Saunders, president of the American Federation of State, County and Municipal Employees.
- NEA, AFT, SEIU and AFSCME: “It is shameful that the billionaire CEOs and corporate special interests behind this case have succeeded in manipulating the highest court in the land to do their bidding,” they said. “This case was nothing more than a blatant political attack to further rig our economy and democracy against everyday Americans in favor of the wealthy and powerful.” (http://nhlabornews.com/2018/06/court-rules-in-favor-of-billionaire-ceos-over-working-people/)
- “If you don’t want to be in the union I understand,” AFSCME Local 2743 President Felicia Dantzler. “And I think with Janus he should still have raises and good working conditions comparable to dues-paying members. But when it comes to anything out of that, when you need representation, and you still want me to represent you, and you haven’t paid a dime, no, you should not continue to sit by the dues-paying members and get the same rights.” (http://www.insidesources.com/unions-fight-preserve-fair-share-fees-nonmembers/)
- “Big loss for the coffers of the Democrats!” Trump tweeted shortly after the decision was announced. It was Justice Neil Gorsuch, the president’s 2017 nominee to fill Scalia’s seat, who proved to be the tie-breaking vote in the case. Trump was only able to install Gorsuch on the Supreme Court, however, because Senate Republicans blocked President Obama from filling the vacancy created by Scalia’s death. (https://www.cnsnews.com/news/article/susan-jones/trump-reacts-scotus-ruling-union-fees-big-loss-coffers-democrats)
Some Key Quotes from the Ruling
Judge Alito (reputed as a “hard right conservative“) was the author of the opinion. Here are some of the highlights of the ruling:
- “If a public-sector collective-bargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from the nonmember’s wages. No form of employee consent is required. This procedure violates the First Amendment and cannot continue. “
- “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”
- “By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.”
Reactions from Dissenting Judges
- Judge Kagan: “There is no sugarcoating today’s opinion,” she wrote. “The majority overthrows a decision entrenched in this nation’s law — and in its economic life — for over 40 years.”’
- Judge Kagan: “Over 20 States have by now enacted statutes authorizing fair-share provisions. To be precise, 22 States, the District of Columbia, and Puerto Rico—plus another two states for police and firefighter unions. Many of those States have multiple statutory provisions, with variations for different categories of public employees. Every one of them will now need to come up with new ways—elaborated in new statutes—to structure relations be-tween government employers and their workers. The majority responds, in a footnote no less, that this is of no proper concern to the Court.”
COVERAGE IS ONGOING – Last updated 6/27/2018 3:30 PM EST.