Supreme Court Watch
Union Dues – Fair Share or Free Ride?
On the first Monday of October 2017, the Supreme Court began a new term. This is the fourth in a series designed to focus on decisions of the Court in this new term that might have an impact on the Eastern Shore.
Strikes and other work disruptions by public workers are now relatively rare, but for many years they were more common. Much of the labor unrest occurred because public workers had little voice in determining the terms of their employment and lacked other means to resolve disputes with management.
In an effort to address the problem, most states now permit many segments of public employees to select an exclusive union representative to deal with management. Once selected, that union has an obligation to bargain fairly and equally on behalf of all represented employees, whether members of the union or not. More than 20 states, including Maryland, also allow public employee unions to charge all represented employees, even those who choose not to belong to the union, fees for work on their behalf in order to fund the costs incurred in providing workplace-related services such as collective bargaining and the processing of grievance claims. These fees are often called agency or “fair share” fees.
Forty years ago, in a case called Abood v. Board of Education, the Supreme Court drew a distinction between fees charged non-members for a union’s purely political activities, such as lobbying, which it held were forbidden by the First Amendment, and fair share fees for more conventional workplace-related union services. Even were fair share fees to have some impact upon an objector’s free speech interests, the Court then held that payment of fees for these kinds of services was “constitutionally justified” in order to encourage “labor peace” and to prevent “free riders” who would otherwise benefit from those services for free.
In a case now pending before the Court, Janus v. American Federation of State, County, and Municipal Employees, Council 31 (AFSCME) , the claim is made that the line drawn in the earlier Abood decision is flawed and that the First Amendment bars compelled payments by non-members for any activity by public unions. Mark Janus, the plaintiff, is employed by the State of Illinois in a bargaining unit that is exclusively represented by AFSCME. The collective bargaining agreement covering his employment contains a fair-share clause to help the union defray its costs of collective bargaining and other workplace services. Janus is not a member of the union and objects to paying his fair-share fee because he disagrees with the union’s “one-sided politicking for only its point of view” and believes the union fails to “appreciate the current fiscal crises in Illinois and does not reflect his best interests or the interests of Illinois citizens.” In briefs filed on his behalf before the Court it is claimed that even the collective bargaining activities of a public employee union are intrinsically political because those activities affect levels of government spending.
AFSCME and the state of Illinois assert that the Abood decision correctly held that fair share fees for work-related services pass First Amendment muster because they prevent free-riding, support workplace fairness, and assist in the maintenance of labor peace. They also suggest that the Court should be especially cautious discarding a 40-year-old precedent which has been relied upon by both states and unions during that time in the management of public employment relations. Under Abood , each state has the flexibility to determine what form of management-employment relations fits its own particular circumstances best. Maryland has joined with nineteen other states and the District of Colombia in a brief in support of AFSCME and Illinois.
A case raising issues similar to those in Janus was before the Supreme Court two terms ago. It was briefed and argued shortly before Justice Scalia unexpectedly died. Following his death, the Court divided 4-4, resulting simply in the affirmation of the lower court’s decision rejecting the fair share fee challenge in that case. Now with the arrival of Justice Gorsuch, the Court again has nine Justices with the result in the Janus case very likely dependent upon the vote of the newest Justice.
Oral argument before the Court in the Janus case was held at the end of February and the Court’s decision is expected prior to the end of June. The result could have a broad impact on the future membership and financial viability of many public worker unions which today constitute most of the labor movement’s strength. Should Mark Janus prevail, public worker unions like AFSCME predictably would suffer severe membership and financial losses because they would lose support not only from workers who purport to object to the positions they take in negotiations but also from anyone who simply would wish to enjoy the benefits of the union’s work without having to contribute financially to the outcome. As a result, this case is one of the most closely watched of the present Court term.
Common Sense for the Eastern Shore
