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

Gorsuch is key justice in dispute over whether non-union government workers can be forced to pay dues

by Brendan Kirby | Updated 02 Oct 2017 at 2:28 PM

The Supreme Court Thursday agreed to hear a labor case to settle an issue that it twice has ducked before — whether government employee unions can compel non-members to pay fees toward activities such as negotiating contracts.

Mark Janus, who works for the Illinois Department of Healthcare and Family Services, argues that it is a violation of his First Amendment rights to be forced to pay fees to a union whose aims he disagrees with. If the high court sides with him, it could potentially impact up to 5.5 million public employees at the state and local levels. Federal workers already are exempt from paying fees if they are not union members.

Jacob Huebert, litigation director at the Liberty Justice Center — which represents Janus — said his client has a First Amendment right to support or not support political organizations.

"Under the First Amendment, you can't be forced to give money to an organization you don't agree with. So that's the issue here," he said. "There's no exception to the First Amendment."

"You can't take any justice's vote for granted. But we are confident. And we think the Constitution is on our side."

But Celine McNicholas, a labor counsel at the liberal-leaning Economic Policy Institute, argues that the lawsuit against the American Federation of State, County and Municipal Employees represents an attack on workers.

"The case threatens the right of the majority of workers, through their democratically elected union, to bargain a contract with their public employer that requires every employee covered by the contract to pay their fair share of the costs of negotiating it, administering it, and enforcing it," she wrote on the think tank's website.

Union supporters regard nonunion workers who benefit from the union's labor contracts to be freeloaders.

"In any other circumstance, it would be outrageous to demand the benefits of a common enterprise without paying one's fair share," McNicholas wrote. "Union representation is no different. Eliminating fair-share fees protects people who want to get something for nothing and as a result, starves unions."

But Huebert counters that all union activity is inherently political. He said Janus, for instance, disagrees with the notion that taxpayers in a state with severe fiscal problems should be forced to cough up more money to public employees.

"There's no way for workers to actually ensure that money isn't going to prohibited political activities," he said.

The court already decided in a landmark 1977 case that public employees do not have to have full union dues that fund political activities if they are not union members. But the court ruled that unions could collect a smaller amount called a "fair-share" or "agency" fee to cover the costs of collective bargaining.

For Janus, that fee amounts to more than $40 a month, Huebert said.

"It adds up over, so our client has paid thousands of dollars," he said.

In 2014, the Supreme Court ruled that a union could not collect agency fees from home health aides in Illinois because they were not actually public employees. The majority opinion in the 5-4 decision suggested that agency fees might be unconstitutional for government workers as well.

The high court last year seemed poised to reverse the 1977 precedent when it agreed to hear a challenge by a group of California public school teachers. But before the court could decide the case, Justice Antonin Scalia died. The remaining justices split 4-4, leaving in place a lower court ruling in favor of the union.

But the Janus case, which already was making its way through the courts, gives justices another opportunity to settle the question. That makes President Donald Trump's appointee, Justice Neil Gorsuch, the key figure.

"You can't take any justice's vote for granted," Huebert said. "But we are confident. And we think the Constitution is on our side."

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  2. gorsuch
  3. labor-unions
  4. right-to-work
  5. supreme-court
  6. unions
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