Next week, the Supreme Court will hear arguments in the Janus v. American Federation of State, County and Municipal Employees, Council 31 case, which addresses a crucial (though convoluted) question for organized labor: Should those public-sector workers who, though not union members, are nonetheless covered by union-negotiated collective bargaining agreements be required to pay some form of union dues or fees?
Mark Janus, the lead plaintiff in the case, is a child support specialist for the state of Illinois, where a state law mandates that workers who are not union members but who are covered by union-negotiated collective bargaining agreements must “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.” (About half of the United States has similar laws on the books.)
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In 2015, Janus sued his union (the AFSCME), saying that he disagreed with many of the union’s positions and alleging that the mandatory fees violate his First Amendment constitutional rights. Here’s how Janus put it in a 2016 op-ed for the Chicago Tribune:
The union voice is not my voice. The union’s fight is not my fight. But a piece of my paycheck every week still goes to the union. I am not anti-union. Unions have their place. And some people like them. But unions aren’t a fit for everyone. And I shouldn’t be forced to pay money to a union if I don’t think it does a good job representing my interests.
The case is essentially a repeat of one the Supreme Court heard back in 2016, Friedrichs v. California Teachers Association. As with the Friedrichs case, Janus asks the Supreme Court to overturn a 1977 ruling, Abood v. Detroit Board of Education, which established the current precedent on mandatory union fees. The Abood ruling concluded that requiring workers like Janus to contribute to a union’s political activities was an unconstitutional violation of the worker’s First Amendment rights, but that requiring workers to contribute so-called “agency fees” toward the costs unions incur while conducting collective bargaining was constitutionally kosher.
Back in 2016, legal analysts expected the court to rule in favor of the plaintiffs, but the unexpected death of Justice Antonin Scalia resulted in a deadlocked court, thus leaving the mandatory fees in place. Scalia’s replacement, Justice Neil Gorsuch, is widely expected to rule in favor of the plaintiffs and eliminate agency fees (although the Washington Post‘s editorial board pointed out that a compromise path does exist).
The ripple effects of such a ruling are hotly debated. Union advocates have argued that a ruling in favor of the plaintiffs would effectively gut public-sector unions. Their concern is that a free rider problem will arise: Workers, who would be able to enjoy many of the benefits of membership (higher wages achieved via collective bargaining, etc.) without those pesky dues and fees, may opt to drop their membership to save a little cash. But while there’s little doubt that the elimination of agency fees would deprive unions of a significant source of revenue, it may be premature to write off public-sector unions just yet.
Joseph McCartin, a public policy professor at Georgetown University and the executive director of the Kalmanovitz Initiative for Labor and the Working Poor, tells me in an email exchange that it’s simply too soon to predict how a ruling in favor of the plaintiff in the Janus case would affect public-sector unions; that, he explains, depends on how union leaders adapt to this new environment.
Agency fees, McCartin points out, were actually instituted back in the 1970s, a time of growing public-sector union membership and increasing militancy, in an effort to stabilize labor relations. State lawmakers believed, in McCartin’s words, that if “unions were more financially secure, they would become less militant and less short-term in their focus.” In the absence of union fees, McCartin wonders if unions might once again start “taking on fights that help them build and keep a loyal membership in an environment where no one is required to support the union that bargains for them.”
“Striking down agency fees might actually encourage public unions to become a social movement again, as they were in the late 1960 and early 1970s before such fees existed,” McCartin writes.
