US public sector unions escaped a close call in March 2016. Because of Justice Antonin Scalia’s death, the unions achieved a small victory when the Supreme Court voted 4-4 in Friedrichs v. California Teachers Association resulting in the upholding of the lower court’s decision. In Friedrichs, the petitioners argued that California school districts violated public school teachers’ First Amendment rights because they negotiated contracts with teachers’ unions that require all bargaining unit members to tender “fair share” fees for collective bargaining representation irrespective of union membership. The crux of the argument is that public sector negotiations costs are “political” because taxes pay for public employees’ salaries, benefits, and pensions. Consequently, compelling bargaining unit members who oppose the union to financially back any union dealings with the government, in essence, means that these employees are paying for “ideological speech.”
If five Supreme Court justices had ruled for this case’s plaintiff, the 1977 Abood v. Detroit Board of Education decision would have been overturned. In Abood the Supreme Court determined that when a public union bargains contracts and processes grievances that benefits union members and nonmembers alike, it could assess the nonmembers a “fair share” or “agency shop” fee for collective bargaining coverage. Thus, presuming that the Supreme Court rehears a similar case, public employees could legally become “free riders” meaning that workers benefiting from union representation would not be required to pay for it.
Janus v. AFSCME, a case nearly identical to Friedrichs, is now before the Supreme Court. The case’s origins date to 2015 when Illinois Governor Bruce Rauner issued an executive order calling on Illinois to stop deducting fees from state workers who had not joined the union. Additionally, Rauner filed a federal lawsuit requesting that the court affirm his decision’s legality. Illinois’ Attorney General Lisa Madigan and several state unions opposed the lawsuit, contending that Rauner could not file the lawsuit because he neither paid union dues nor fees. Realizing that the case was in trouble, the Right to Work Legal Defense Foundation and the Liberty Justice Center offered three state workers, who objected to paying union fees, legal assistance. Subsequently, a federal judge determined that these workers had legal standing to file the lawsuit, unlike Rauner. Although the Seventh Circuit Court of Appeals decided against the lawsuit in supporting a previous district court ruling, the stage was set for a Supreme Court appeal, which the highest court accepted on Sept. 27, 2017.
With conservative Justice Neil Gorsuch replacing Scalia, it is likely that the Supreme Court will rule for the Janus plaintiffs, thus overturning Abood and transforming the entire public sector into right-to-work status. Thus, will public unions survive when they can no longer collect fees from nonmembers? Because of recent public employee union attacks, such as the 2011 Wisconsin Act 10 that limited public unions’ collective bargaining rights, the four largest public sector unions – the American Federation of State, County and Municipal Employees (AFSCME), the Service Employees International Union, the National Education Association and the American Federation of Teachers – through internal organizing have taken steps to reestablish contact with passive members while transforming “fair share” payers to members.
AFSCME has assumed a vanguard role in this effort since 2013. As Bloomberg reported earlier in 2017, AFSCME staff members and activists have engaged in 600,000 one-on-one conversations with members and “fair share” fee payers resulting in 12,000 members added to AFSCME’s rolls since January 2017. While 90 percent of public employees covered by labor contracts are members, unions are concerned that many employees could leave unions if agency-shop fees are abolished.
Some have argued that if the Janus decision overturns Abood, then the unions should immediately contest their duty to represent free-riding nonmembers, contending that this is a violation of their First Amendment right to freedom of association. Professor Catherine Fisk of the University of California/Berkeley Law School and New York antitrust lawyer Margaux Poueymirou assert that if the Supreme Court rules that mandatory agency fees are unconstitutional because they force nonmembers to pay for political activities that they oppose, then requiring unions to devote their money to aid nonmembers also would be unconstitutional.
Dr. Victor G. Devinatz is Distinguished Professor of Management, specializing in labor relations,
and was the Hobart and Marian Gardner Hinderliter Endowed Professor (2014-2015) at Illinois State University. He can be contacted at firstname.lastname@example.org
I believe this latter approach is potentially dangerous. Not providing nonmembers with representation could lead to a greater division within the workplace by employers playing members and nonmembers off against each other. The better strategy is to conduct thorough internal organization campaigns, making unions truly democratic and membership controlled as many were when initially established. The history of public teachers’ unions indicates that effective and militant labor organizations were built in the 1960s prior to the passage of many state public sector labor laws. While it will not be easy, the goal should be to revive this union organization model.