The United States Supreme Court ruled in a 5-to-4 decision that government workers who choose not to join unions may not be required to pay to help those union’s collective bargaining efforts.
At The Perecman Firm, we firmly disagree with this ruling because workers who choose not to join the union will still benefit from the unions’ collective bargaining efforts. Experts believe that this ruling could result in public-sector unions losing tens of millions of dollars in financial support. These unions already face considerable political pressure and opposition from conservative groups across the United States, and are at risk of seeing their effectiveness severely impacted.
“There is no sugarcoating today’s opinion,” Justice Elena Kagan wrote in her dissent of the majority opinion. “The majority overthrows a decision entrenched in this nation’s law — and in its economic life — for over 40 years… As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”
The case, Janus v. American Federation of State, County and Municipal Employees, No. 16-1466, was brought by Mark Janus who works for the Illinois state government as a child support specialist. He sued the union, arguing that he should not be required to pay fees supporting its work because he disagrees with its political positions. This ruling stuck down a previous law in Illinois requiring government workers who did not join their respective union to,
“pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment.”
Illinois is one of more than 20 states that had this type of law requiring workers to pay “agency fees” when they chose to not join their union. These fees, according to the Supreme Court, were approximately 78 percent of what union members paid in membership dues.
Workers Were Always Able to Secure Refunds for Money Spent on Political Activities, Unions Say
Unions argued against the Court’s reasoning, stating that its members already have the ability to receive refunds for payments spent on political activities taken by the unions, including money spent on advertising supporting political candidates.
Conservative groups have sought to cut into the power of unions for years now, and this case is a culmination by those efforts.
“It’s a mistake to look at the Janus case and earlier litigation as isolated episodes,” said Alexander Hertel-Fernandez, a Columbia University political scientist who studies conservative groups in an interview with the New York Times. “It’s part of a multipronged, multitiered strategy.”
Tax filings obtained by the New York Times showed that Illinois industrialist Richard Uihlein was the chief financial backer of the Liberty Justice Center, which represents Janus in this case. Over the years, Uihlein has donated millions of dollars supporting Republican candidates across the United States, including Illinois Governor Bruce Rauner, Texas Senator Ted Cruz, and Wisconsin Governor Scott Walker. He has also donated more than $1 million supporting groups like the Federalist Society which work to push the judiciary in a more conservative direction, and helped produce the current conservative-majority Supreme Court.
Hertel-Fernandez, along with colleagues James Feigenbaum and Vanessa Williamson, published a paper (PDF) earlier this year exploring the potential political impact if supporters of Janus’ position were successful in this case. According to their research, allowing employees to not pay union fees could result in a three and a half decrease in the Democratic share of the presidential vote. This impact was on the mind of Republicans in office, including current Senate Majority Leader Mitch McConnell, whose efforts to keep former Supreme Court Justice Antonin Scalia’s seat open for a record-setting 422 days to allow President Donald Trump to select his successor.
“In states where they got rid of the automatic deduction and employees figured they could keep their own money, they did,” McConnell said earlier this year. “So it could have an impact.”
This is not the first time in recent years that the Supreme Court heard a case about requiring people to pay union fees. Back in 2016, a case brought by 10 California teachers made its way to the highest court in the country that argued a very similar point – requiring public workers to pay union dues to unions they declined to join violated their First Amendment rights.
That case, Friedrichs v. California Teachers Association, No. 14-915, raised the question about whether government workers who were not union members were required to pay “fair share service fees”, which are meant to help pay for collective bargaining activities, and typically equal what members pay to the union. These activities include negotiating for better benefits and wages, and provide benefits for workers whether or not they chose to join the union.
This case appeared to be all but over given the perceived support from Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, John Roberts, and Scalia – however, Justice Scalia’s death soon after the case resulted in a 4-to-4 vote deadlock.
The Supreme Court’s Decision Overrules a 40-Year-Old Decision
This ruling overruled the 1977 decision on Abood v. Detroit Board of Education, where the Supreme Court made a distinction on which payments workers were compelled to make to unions. It ruled that forcing a worker to finance a union’s political activities was a violation of the First Amendment, but it was constitutional to require nonmembers to help pay for the collective bargaining efforts of unions in order to prevent nonmembers from receiving the benefits for free.
“The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to,” Kagan wrote. “The majority undoes bargains reached all over the country. [The decision] wreaks havoc on entrenched legislative and contractual arrangements.”
This decision will likely have a considerable impact across the nation – in her dissent, Kagan wrote that 144 contracts with 97 public-sector unions in New York City alone will need to be renegotiated in order to account for the changes in agency fee requirements.
While the Janus ruling will not affect private sector employees, only 6.5 percent of those employees are represented by unions. That number has been declining since the early 1980’s, when approximately three times as many people maintained union membership in the private sector.
This ruling could have a devastating effect on unions’ ability to effectively protect and argue for the rights of their workers, potentially damaging workers’ rights across the United States. The Perecman Firm has been a proud supporter of unions for more than three and a half decades, and will continue to do so now that they face one of the biggest challenges in recent memory. We will continue to ardently argue for the rights of workers in court, and will do everything in our power to ensure that injured workers receive the compensation they are due.