Supreme Court to Hear Case That Could Deal Huge Blow to Unions

Justices will consider whether public sector unions can compel nonmembers to pay 'agency fees' in addition to taxes that fund government paychecks

Justices of the Supreme Court will hear arguments Monday in a case that could deal a major blow to the political power of public employee unions.

At issue is whether public sector unions can force nonmembers to contribute toward the costs of negotiating contracts. Mark Janus, who works for the Illinois Department of Healthcare and Family Services, contends that forcing him to pay such “agency fees” amounts to illegal compelled speech because it forces him to support the political aims of the American Federation of State, County and Municipal Employees (AFSCME).

The AFSCME political contributions go almost exclusively to Democrats.

A ruling in favor of Janus could potentially affect up to 5.5 million state and local government employees throughout the United States. Federal workers already are exempt from paying fees if they are not union members.

The high court considered a similar case once before and even met in conference to discuss the issue. But then Justice Antonin Scalia died in 2016, and the justices issued a terse order indicating that they were divided 4-4.

[lz_third_party align=center includes=”https://www.youtube.com/watch?time_continue=5&v=EkD4oW8GUdI”]

That makes Justice Neil Gorsuch, whom President Donald Trump appointed to replace Scalia, the man to watch on Monday.

“Looking at the handwriting on the wall … there are four votes on each side, and they are the predictable alignment, with four conservatives saying that the employees cannot be forced to pay these agency fees and the four liberals saying they can,” law professor Brad Smith told reporters on a conference call organized by the Federalist Society.

“That would leave the deciding vote up to Justice Gorsuch, the only one who hasn’t heard this issue while sitting on the Supreme Court,” Smith said.

Cost “could be considerable.” Typically, nonmembers do not have to pay full union dues, but the lesser fees still add up. Smith, who teaches Capital Law School in Ohio, noted that Janus was paying about $600 a year in agency fees.

“The cost of this could be considerable,” he said.

Smith said Illinois has about 40,000 similarly situated public employees. If they all stopped paying agency fees, he pointed out, it would cost the union about $20 million. Unions in New York State have estimated the total potential impact at $50 million a year.

“This is really about the third time that the issue has come before the Supreme Court, and the question is whether three times will be a charm and we’ll get a result from the Supreme Court one way or the other.”

The union argues that the court should stick to a 1977 case that “confirmed the constitutionality of ‘fair-share fees’ to finance collective bargaining activities of unions obligated under state law to represent both union members and nonmembers.”

Trump has weighed in on the side of Janus. Solicitor General Noel Francisco wrote in a brief in December arguing that allowing state and local governments to compel employees to support union speech with which they disagree “conflicts with prevailing precedents and with ‘the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Smith said the 1977 case upholding agency fees, Abood v. Detroit Board of Education, has come under criticism on grounds that it has been hard for employees to get refunds for the portion of dues devoted to lobbying and political activities and that unions are adept at concealing those costs.

Janus argues that public sector unions are inherently different from those in the private sector in that contract negotiations and political activities cannot be separated, since all decisions involving employees also affect taxpayers.

Third time’s a charm? In 2012, the Supreme Court ruled 7-2 in Knox v. Service Employees International Union that the union must provide workers with a specific notice when it charges a special assessment for political activities. Justice Samuel Alito, in an opinion not joined by two liberal justices who were in the majority, went out of his way to question the Abood precedent.

In 2014, the issue came before the court again, in a case called Harris v. Quinn, in which home health care workers objected to fees. The court ruled that the workers were not state employees, however, and did not have to join the union. Therefore, the issue of agency fees remained unaddressed.

“This is really about the third time that the issue has come before the Supreme Court, and the question is whether three times will be a charm and we’ll get a result from the Supreme Court one way or the other,” Smith said.

Related: Supreme Court Poised to Deliver Major Blow to Big Labor’s Power

It is unknown how disruptive a ruling against AFSCME would be.

“It’s not clear, empirically, that you would get a mass exodus of current union members, or even a small exodus of current union members,” Smith said. “The people who are already in the union [may] want to stay in the union … Certainly, not everyone paying an agency fee is going to say they don’t want to pay that agency fee.”

Smith said states that recently have adopted right-to-work laws allowing private sector workers to opt out of union membership, such as Indiana, Michigan and Oklahoma, have not experienced a rapid decline in membership.

“If anything, union membership’s actually increased in some of these states,” he said. “And some argument might be made that unions will function more effectively or efficiently; if they can’t compel theses fees, then they’re more likely to do things that the workers, that the members they represent, actually want and can actually increase union membership.”

PoliZette senior writer Brendan Kirby can be reached at [email protected]. Follow him on Twitter.

meet the author

PoliZette senior writer Brendan Kirby can be reached at [email protected].