Unions, Others Urge Supreme Court to Preserve ‘Fair-Share Fees’
Features, Law and Politics, Municipal Government, National

Unions, Others Urge Supreme Court to Preserve ‘Fair-Share Fees’

January 24, 2018

By Steve Wishnia

WASHINGTON—With the Supreme Court preparing to hear arguments in the Janus v. AFSCME Council 31 case next month, more than 25 unions and a bevy of

What’s fair is fair, Supreme Court.

supporters have filed briefs defending public-employee unions’ rights to charge fees to nonmembers they represent.

American Federation of State, County and Municipal Employees Council 31, which represents more than 35,000 Illinois state workers, and the state of Illinois filed their arguments Jan. 12. Almost 40 other groups contributed amicus briefs by the Jan. 22 deadline. The unions filing them include the AFL-CIO, the two national teachers unions, the Teamsters, the Machinists, and the International Association of Firefighters. The others include state governments, law professors, religious groups, civil-liberties and gay-rights organizations, and the mayors of New York, Los Angeles, Chicago, Philadelphia, and Seattle.

The Janus case seeks to overturn the current Supreme Court precedent, set in the 1977 Abood v. Detroit Board of Education case. That decision held that nonmembers can’t be forced to pay for unions’ political activity, but they can be required to pay an “agency fee” or “fair-share fee” to cover the costs of representation. Backed by an array of far-right legal organizations, plaintiff Mark Janus, an Illinois state-agency worker represented by Council 31, claims that all public-sector union activity is “political,” because it involves public money—and thus, his having to pay a fee to support it is “compelled speech” that violates his constitutional rights.

“Nothing in the Constitution precludes a requirement that all workers pay their fair share of services provided,” Council 31 responds. It contends that the agency-fee requirement doesn’t affect employees’ free speech any more than requirements that they “abstain from writing books about top-secret matters or discussing confidential information with the press.” Governments cannot interfere with workers’ free speech as citizens, it argues, but they have some rights to limit what they say as employees, and governments also have a legitimate interest in the efficiency and labor peace of negotiating with only one representative.

“Contrary to Janus’s—impractical—desire, the First Amendment does not require that the State negotiate 60,000 individual employment contracts,” the brief says.

It also notes that while Janus argues that “AFSCME’s behavior in bargaining does not appreciate the current fiscal crises in Illinois,” Council 31 has no record of him ever “seeking to change a position in collective bargaining—or “disclaiming any raise or economic benefit the Union has obtained for public employees during his tenure.”

Illinois Attorney General Lisa Madigan—going against Gov. Bruce Rauner, who initiated the case when he cut off the state collecting fair-share fees after he took office in 2015—makes a similar argument.

Janus’s “radically overbroad constitutional claim seeks to invalidate all public-sector agency fees on the theory that everything a public employee union does, right down to the most picayune workplace grievance, is political speech in a public forum,” she wrote. That worldview, she added, “overlooks the basic distinction between government as employer and government as regulator.” If employees could “opt out of paying for what the union is legally obligated to provide to them,” she continued, the “resulting disparity and resentment would disrupt the workplace,” and the state has the right as an employer to try to prevent that.

The lineup of states taking sides in the case almost exactly mirrors the nation’s partisan divisions. The 23 states backing fair-share fees include California, New York, Minnesota, and all of the Northeast except New Hampshire, with North Carolina, Pennsylvania, Iowa, and Kentucky the only ones carried by Trump in 2016. Of the 20 states that signed Michigan Attorney General Bill Schuette’s brief supporting Janus in December, only Nevada went Democratic in 2016.

Trump administration Solicitor General Noel J. Francisco will argue on behalf of Janus.

Other briefs include one from 57 home health-care workers who paid fair-share fees to SEIU Healthcare Illinois & Indiana and “did not object to financially supporting their union.” Many simply hadn’t filled out the paperwork to join, and the union contract had gotten them raises from $7 an hour to $13, training, and benefits.

Faith in Public Life, a coalition of 24 Catholic, Protestant, Jewish, and Muslim groups, argues that public employees’ unions “are organizations critical to empowering workers seeking justice in the workplace.” It cites the pro-union Catholic social doctrine of Pope Leo XIII’s 1891 encyclical Rerum Novarum and the Rev. Martin Luther King’s last crusade, supporting Memphis sanitation workers trying to get their union recognized in 1968.

A coalition of Indiana private-sector construction and building-maintenance contractors says that while the Taft-Hartley Act of 1947 prohibited the “closed shop,” in which workers had to be union members to get a job, it allowed “union security agreements” that prevented nonmembers from being “free riders”—which can be more than two-thirds in “right-to-work” states. Janus’s argument, they say, relies “on the mistaken premise that union security clauses are best seen as proof of improper political influence,” but “rational employers often choose to adopt such clauses,” for reasons such as the union being able to provide them “with a stable source of the best-trained and skilled employees.”

All these arguments, however, are unlikely to persuade the Supreme Court to uphold fair-share fees, unless Justice Anthony Kennedy changes his mind. The high court would have ruled them unconstitutional in 2016, in Friedrichs v. California Teachers Association—but the death of Justice Antonin Scalia resulted in a 4-4 stalemate that left the Abood precedent intact. Kennedy joined the faction that voted to reverse it.

Scalia’s replacement, Justice Neil Gorsuch, is a certain anti-labor vote. As a federal appeals-court judge in 2016, he was the only dissenter when the 10th Circuit ruled that truck driver Alphonse Maddin had been unfairly fired.

Maddin, who had been stranded in subzero weather for more than three hours on an Illinois highway in January 2009 when the brakes on his trailer froze, had been fired for unhooking the trailer and driving the cab off to a warm truckstop after he’d passed out from the cold. Gorsuch argued that he had no legal justification to keep his job, because federal law “only forbids employers from firing employees who ‘refuse to operate a vehicle’ out of safety concerns”—and Maddin “wasn’t fired for refusing to operate his vehicle.”

January 24, 2018

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