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Supreme Court to Take Another Crack at Banning ‘Fair-Share Fees’

October 3, 2017

By Steve Wishnia

Washington—The Supreme Court announced Sept. 28 that it would take another crack at ruling that public-sector unions can’t charge nonmembers fees for representing them—and the unions don’t like it one bit.  “The Janus case is a blatantly political and well-funded plot to use the highest court in the land to further rig the economic rules against everyday working people,” the nation’s four largest public-sector unions—the American Federation of State, County, and Municipal Employees, the American Federation of Teachers, the National Education Association, and the Service Employees International Union—said in a joint statement after the Court agreed to hear an appeal in Janus v. AFSCME Council 31. “The people behind this case simply do not believe that working people deserve the same freedoms they have: to negotiate a fair return on their work.”

The case was filed in 2015 by Mark Janus, a child-support specialist with the Illinois Department of Healthcare and Family Services, after a federal district court dismissed a similar suit by Gov. Bruce Rauner. It seeks to overturn the Court’s 1977 decision in Abood v. Detroit Board of Education, which held that workers could not be compelled to pay for a union’s political activities, but they can be required to pay fees to cover the costs of representing them. It claims that any bargaining by public-sector unions is political activity, and thus forcing nonmembers to pay for it violates their First Amendment rights.

“Agency-fee provisions compel public employees to support political advocacy, for there is no distinction between bargaining with the government and lobbying the government,” the National Right to Work Legal Defense Foundation, which is representing Janus, wrote in a brief to the Court.

That is the same argument made last year in Friedrichs v. California Teachers Association, when the Court deadlocked 4-4 and thus sustained a lower-court ruling based on the Abood precedent. The difference now is that new Justice Neal Gorsuch gives the anti-union bloc a 5-4 majority, unless Anthony Kennedy switches sides.

Unions make a simple argument in defense of the Abood precedent: Federal law requires them to represent all workers in a bargaining unit, so they and their members shouldn’t have to pay to support “free riders.”

“A union selected by a majority of employees must act as the exclusive bargaining representative for all employees and owes a duty to fairly represent all employees within the bargaining unit, without regard to union membership,” AFSCME Council 31’s brief argues. “Fulfilling that representation obligation is not costless.” It calls fair-share payments a justifiable “small intrusion on employees’ First Amendment interests,” on the level of a state requiring lawyers to be members of a bar association.

“Because all the workers enjoy the benefits, job security and other protections that the union negotiates, it’s only fair that everyone chip in for the cost of that representation,” Council 31, which represents about 35,000 Illinois public employees, says in a fact sheet posted on its Web site. “By outlawing fair-share fees, employees who benefit from the gains that the union makes will not have to pay anything toward the cost of union representation.”

Federal appeals courts, however, have rejected that argument when it was used to challenge state “right to work for less” laws in Indiana and Wisconsin. They dismissed unions’ claims that having to represent nonmembers for nothing was an unconstitutional “taking” of their property, to wit, their labor.

The National Right to Work Legal Defense Foundation brief does not address the question of mandatory representation. Instead, it essentially claims that unions aren’t necessary. “Evidence concerning the ostensible benefits unions obtain for employees in bargaining is also immaterial,” it says, “because agency fees are not the least restrictive means for the State to provide any such benefits…. If the State wants to provide ‘protective equipment,’ or ‘training,’ or anything else to certain personnel, the State can simply do so.”

Mark Janus agrees. “I’ve negotiated my own salary and benefits at plenty of jobs before I started working for the state,” he said in a statement released by the Illinois Policy Institute, a Chicago-based think tank whose litigation branch is also representing him. “And I’d be more than happy to do so again.”

The Illinois Policy Institute is affiliated with the State Policy Network, a nationwide alliance of more than 65 state-based think tanks. In a 2016 fundraising letter, the network said that cutting off “big government” unions’ income from dues and fees would deliver the “mortal blow” that would permanently break the left’s “stranglehold on our society.”

Several far-right policy and litigation groups have filed amicus briefs supporting Janus, such as the Mackinac Center for Public Policy, Pacific Legal Foundation, Competitive Enterprise Institute, and the libertarian Cato Institute. Michigan Attorney General Bill Schuette, joined by the attorney generals of 18 other states, including Texas, Wisconsin, and Arizona, filed another.

“These groups have been plotting for decades to take away workers’ freedom to join together and negotiate for fair wages and benefits, and to improve our workplaces,” Communications Workers of America President Chris Shelton said in a statement. “The right-wing attack on fair share is all about weakening unions, with the hope of giving corporations even more power and accelerating the assault on achievements like Social Security, civil rights, wage and hour and safety laws, Medicare, and public education that unions fight every day to preserve.”

October 3, 2017

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