Law & Courts

Parties Gird for Supreme Court Showdown Over Union Fees

By Mark Walsh — February 08, 2018 6 min read


Is there any reasonable chance that the teachers’ unions and other public-employee labor groups can pull off an unexpected victory in the latest U.S. Supreme Court battle over a 40-year-old precedent that has been a bedrock of their financial and bargaining strength?

Judging by the tone of a joint press conference the four largest public-employee unions held last week about Janus v. American Federation of State, County, and Municipal Employees, Council 31 (Case No. 16-1466), the labor movement is girding for an era in which they will no longer be able to charge “agency fees” to employees in a bargaining unit who refuse to join the union to cover those workers’ share of collective bargaining costs.

Such an outcome in the case to be argued Feb. 26 would cost them not merely revenue from the fee payers, but also some full dues-paying members as at least some teachers or firefighters or state workers would choose to quit their unions.

The presidents of AFSCME, the American Federation of Teachers, the National Education Association, and the Service Employees International Union spent the Feb. 7 event by discussing how they plan to reignite their movement and by attacking the conservative groups that they say have underwritten lawsuits and lobbied against union interests.

“Let’s be clear. This case is about power,” said Randi Weingarten, the AFT president. “The funders of this case want a new Gilded Age, this time on steroids.”

Key Legal Precedents

U.S. Supreme Court rulings regarding public-sector unions and the “agency fees” they charge for collective bargaining from workers who choose not to join the unions stem back some 40 years.

Abood v. Detroit Board Of Education | 1977
The court held that teachers who don’t wish to join the union may be required to pay “agency fees” as a condition of employment when those fees are used for collective bargaining and other administrative purposes.

Chicago Teachers Union, Local No. 1 v. Hudson | 1986
This decision helped spell out some of the nuts and bolts of the collection of agency fees. The court said that agency-fee payers are entitled to have their objections to the amount of the fee addressed expeditiously. And the union is required to supply nonunion members with adequate information about how the agency fee was calculated.

Lehnert v. Ferris Faculty Association | 1991
In an even more technical and fractured decision, the court clarified that nonunion members paying agency fees are not required to support most political lobbying and public relations efforts. But a local teachers’ union may use such fees to cover the cost of affiliation with state and national unions, as well as to send delegates to national union meetings, the justices said.

Knox v. Service Employees International Union | 2012
In a case dealing with some of the finer points of agency fees, Justice Samuel A. Alito Jr., in the majority opinion, questioned a key underpinning of Abood—that compelling non-members to pay agency fees helps avoid the problem of “free riders.” That “represents something of an anomaly” in First Amendment law, Alito wrote.

Harris v. Quinn | 2014
Just two years later, the gloves came off as Alito again wrote the majority opinion in a case on agency fees, devoting 12 pages to questioning the underpinnings of Abood. Because the Harris case involved unionized, Medicaid-funded home health aides who were unlike typical state and local government employees, Alito said it was unnecessary for the court to overrule the 1977 decision to rule that the union could not collect agency fees from those who refused to join the union.

Friedrichs v. California Teachers
| 2016

This case involving several California teachers who objected to paying agency fees directly raised the question of whether Abood should be overruled. At oral arguments in January 2016, Justice Antonin Scalia, a one-time defender of the free-rider justification for agency fees, appeared to side with the objecting teachers based on their argument that even collective-bargaining activity is essentially intertwined with politics and thus implicates the teachers’ First Amendment rights. But just about a month later, Scalia died and the court soon announced a deadlock in the case.

NEA President Lily Eskelsen García said, “This is another attack on strong unions. ... A good union job has always meant a fair wage, benefits, some job security for your family.”

Those on the other side of the case, from local union dissenters to longtime anti-labor activists, are hoping that victory is in their sights despite the fact that the key 1977 precedent, Abood v. Detroit Board of Education, survived three other times since 2012 when the justices had an opportunity to overrule it but did not or could not.

“We have 22 states where government workers like myself are forced to pay these fees even when we’re not a member of the union,” said Mark Janus, an Illinois state child-support specialist who is the lone challenger in the Supreme Court to the agency-fee system. “That’s just plain wrong.”

William L. Messinger, a lawyer with the Springfield, Va.-based National Right to Work Legal Defense Foundation, who helps represent Janus, senses a moment approaching when the court may finally be ready to overrule Abood.

“The foundation has been working on this since the late 1960s,” said Messinger, who has argued two agency-fee-related cases before the justices and will argue Janus’ case. “Hopefully, here we an opportunity to move the ball forward in terms of protecting individual employee free choice.”

Election Twist

The last time the issue was before the high court, in 2016 in Friedrichs v. California Teachers Association, it appeared that a majority of the justices were prepared to overrule Abood. But then Justice Antonin Scalia died, and the court spilt 4-4, leaving a lower-court ruling for the unions intact.

It looked like anti-union groups had come as close as they could to achieving their longtime goal of eliminating agency fees but would potentially go years without getting another viable chance. If Hillary Clinton had won the White House, she would presumably have appointed a labor-friendly justice to fill Scalia’s seat.

But the election of Donald Trump gave unions reason to tremble again. His Supreme Court appointee, Justice Neil M. Gorsuch, is widely presumed to be likely to lean against the unions. That assumption is based more on his general conservative record than anything specific in his writings or his opinions as a longtime federal appeals-court judge.

In the last case, it was Rebecca Friedrichs, a teacher who objected to the agency fees of the union in her district (the NEA and its state and local affiliates) who was the charismatic face of the case. The National Right to Work Foundation was on the sidelines, as it was another group that pressed the case.

In the case going before the justices now, it is the soft-spoken Janus who is going up against AFSCME. But the stakes are the same—and very high—all around.

Politics of Collective Bargaining

Janus, a 65-year-old native of Springfield, Ill., said he briefly joined the union when he held a different state job in the 1980s. He later went to work in the private sector before joining the Illinois health-care and family-services department, where since 2007 he has worked to help the children of divorced families get the proper financial support.

Janus has about $46 deducted from his paycheck each month for the service fee that goes to the local, the state affiliate, and to AFSCME, for collective-bargaining-related services.

Under the Supreme Court’s line of cases in this area, agency fees may not go for the union’s political expenditures. But the groups attacking the system have fine-tuned their arguments in recent years that the collective bargaining process itself is inherently political, because it involves policy decisions about spending on wages, benefits, pensions, and so forth.

“You can’t separate the collective bargaining from the politics,” Janus said. “In our current situation here in Illinois, AFSCME has been trying to get $3 billion in wage and benefit increases. If anybody knows anything about Illinois, the state is just plain broke.”

In response to a key argument of the unions—that removing agency fees will allow nonmembers to be “free riders” in a system in which the union must represent all workers in the bargaining unit—Messinger contends that the duty of fair representation is something the unions seek.

“The idea that the duty to represent all employees is something the government imposes on them has it backward,” he said. “It gives them a huge amount of power.”

Messinger points to a favorite line of the Janus brief, written by him and others.

“Union complaints about the heaviness of the crown they seized, and now jealousy guard, cannot be taken seriously,” the brief says.

Government as Employer

As for the unions, just because their leaders are looking beyond a possible negative ruling doesn’t mean their lawyers aren’t making last-gasp legal arguments for keeping Abood in place.

In a brief for AFSCME, David C. Frederick, a Supreme Court litigation specialist who argued for the NEA and its affiliates in the Friedrichs case, stresses the role of the government as an employer.

“Overruling Abood and applying exacting scrutiny to the government’s decisions as employer is inconsistent with the First Amendment’s original meaning, which imposed no barrier to conditions on public employees’ free-speech rights,” the brief states.

The AFT’s Weingarten helped write her union’s friend-of-the-court brief, which argues that agency fees “burden First Amendment rights no more, and no differently, than the reductions in pay workers regularly endure to defray the cost of the speech of other participants in the contracting process,” such as administrators and consultants.

The NEA’s friend-of-the-court brief says Janus and his supporters are “blind to the reality” that “at bottom, public employment is an extended exercise in compelled speech and association.”

There are dozens of friend-of-the-court briefs in the case, and it is sometimes hard for any single one to stand out. One that has drawn public discussion was filed on the unions’ side by two libertarian legal scholars, Eugene Volokh of the University of California, Los Angeles, law school, and William Baude of the University of Chicago Law School.

They offer a nuanced argument that Abood was wrong in one respect, by recognizing any First Amendment objection (such as to union political spending) in the first place.

“If anything in Abood should be revisited, it is the existence of the First Amendment interest itself,” the pair argue.

While the brief has given union interests some hope for an unexpected result in Janus, the unions themselves don’t seem to be counting on it.

A version of this article appeared in the February 14, 2018 edition of Education Week as Parties Gird For High-Court Showdown Over Union Fees


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