In a widely expected development, the United States Supreme Court ruled 5-4 against public-sector unions in Janus v. American Federation State, County, and Municipal Employees, Council 31 (also known as Janus v. AFSCME). The decision ended mandatory funding by government workers for public-sector unions and is largely believed to have dealt a blow to future collective bargaining in the United States.
Public-Sector Unions and Fair-Share Fees
The Plaintiff in the case, Mark Janus, is a child support specialist at the Illinois Department of Healthcare and Family Services who works under a contract negotiated between AFSCME and the State of Illinois. Though Mr. Janus was not a member of AFCSME, the union still advocated for him because public-sector unions in Illinois are required by law to represent everyone in a bargaining unit equally.
The union contract also demanded that each worker in Mr. Janus’ unit cover “fair-share” or “agency” fees, which are the costs associated with collective bargaining. Fair-share fees, which are not the same as union membership dues, were first approved under the National Labor Relations Act of 1935, while their legality was later affirmed by the Supreme Court in 1977’s Abood v. Detroit Board of Education.
Challenging fair-share fees was one of Illinois Republican Governor Bruce Rauner’s first acts upon taking office in 2015, when he issued an executive order giving state workers who do not want to pay the fees permission not to do so and instructed state agencies to stop collecting them on behalf of public-sector unions. He also filed a lawsuit to end fair-share fees, claiming that they were unconstitutional.
Rauner was eventually dropped from the case after a federal judge ruled that he did not have standing to bring such a lawsuit, but Mark Janus later joined the lawsuit as an injured party. He contended that he should not have to pay fair-share fees – which amounted to roughly $45.00 per month from his paycheck – when he is not a member of AFSCME.
His attorney argued that workers should not have to pay the fees on First Amendment grounds, contending collective bargaining for government workers is inherently political because the negotiations of public-sector unions impact the use of taxpayer funds and state budgets. Therefore, requiring workers to pay fair-share fees would amount to compelled speech, violating the First Amendment.
Union advocates argued that ruling against fair-share fees could hurt unions by undercutting membership and funding. AFSCME Council 31 Executive Director Roberta Lynch called Janus a “blatant political attack by Bruce Rauner and other wealthy interests on the freedom of working people to form strong unions.”
At the time of the Supreme Court case, 22 states and the District of Columbia required workers to pay fair-share fees regardless of union status. AFSCME represents over 75,000 public employees in Illinois, with more than 90 percent of them as members.
Rauner’s executive order and his directive to the comptroller’s office to stop collecting fair-share fees have been on hold while the court battles have been playing out. In 2016, the Supreme Court took up a similar case in Friedrichs v. California Teachers Unions, which involved public school teachers who were required to pay fair-share fees to public-sector unions. While the Supreme Court had been expected to rule against the union in that matter, the death of Justice Antonin Scalia created a 4-4 deadlock that affirmed a lower court’s ruling allowing the fair-share fee system to remain intact.
Supreme Court Cites First Amendment Rights
On February 26, 2018, the Supreme Court of the United States heard the oral submissions of the parties involved in the Janus lawsuit. On June 27, the Court issued a 5–4 ruling against the union, arguing that the application of public-sector union fees to non-members is a violation of First Amendment rights. In doing so, the Supreme Court overturned the ruling in Abood v. Detroit Board of Education.
Justice Samuel Alito, who authored the majority opinion on Janus, wrote that “The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”
Justice Elena Kagan authored the dissenting opinion, in which she argued that conservatives on the Supreme Court were “weaponizing the First Amendment.”
“Today is not the first time the Court has wielded the First Amendment in such an aggressive way. And it threatens not to be the last,” Kagan wrote. “Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things.”
Illinois to Stop Collecting Fair-Share Fees
Rauner had traveled to Washington in anticipation of the Supreme Court’s ruling on the matter. He said that the Supreme Court’s decision was “pro-workers and pro-taxpayer” and that it represented a “historic victory for freedom of speech and affiliation for our public-sector employees, and for taxpayers who have to bear the high cost of government.”
Rauner also stated that Illinois will no longer withhold fair-share fees from paychecks of workers who are not union members. State employees will also be notified of the Supreme Court decision and “given an opportunity to modify their union status.”
“Free-Rider Conundrum”
Critics argued that the Janus ruling would make it harder for public-sector unions to survive because of what is known as the “free-rider conundrum.”
The free-rider conundrum describes a situation in which workers know that they benefit from a union’s actions but choose to opt out of paying fair-share fees in order to serve their economic self-interest, since the union will continue representing them whether or not they pay.
Unions may now face greater pressure to prove their value to workers if they are no longer required to pay fees. Many large public-sector unions have undertaken internal organizing campaigns to shore up support among current members. Internal organizing comes at a cost, however, since unions are forced to devote funds and effort to maintaining the status quo instead of growing, at a time when unions are already under siege from rollbacks on collective bargaining and right-to-work initiatives across the country.
Unions have also traditionally been heavy donors and providers of ground game support for Democratic candidates. A loss of fair-share fees will likely reduce the ability public-sector unions to offer such assistance, significantly hurting the prospects for Democrats in what many see as a critical election year.
A Democratic party hobbled by a lack of union support may also harm the unions themselves. Fewer Democrats in statehouses and Washington would likely mean fewer defenders for unions, making it easier for Republican politicians to pass anti-labor laws.
Statement of Louis C. Cairo, GWC Law, on Today’s U. S. Supreme Court Ruling in Janus v. AFSCME
Today, a divided U.S. Supreme Court issued an inexplicable ruling in Janus v. AFSCME that strikes at the very heart of the struggle of organized labor to protect workers’ rights. Casting aside 41 years of settled law, the court’s 5-4 vote further emboldened the efforts of many in Congress to defund unions.
For his part, Illinois governor Bruce Rauner spent the better part of the week in Washington loitering on the courthouse steps, hoping to capitalize on his efforts to drive down wages for Illinois workers as a means to boost corporate profits at the expense of working families. That he has once again emerged as the champion of the wealthy while disingenuously claiming to be pro-worker should be a surprise to no one.
The immediate effect of this ruling is that the approximately ten percent of non-union member service workers who pay fair share fees won’t have those fees deducted going forward. It also means that others might be tempted to drop their union membership to avoid paying member dues that ultimately benefit every service worker in Illinois. But while the idea of saving a few dollars a month might have a superficial appeal to some, there is no such thing as a free lunch in Rauner’s Illinois.
Nothing in this state takes place in a vacuum. The targeting of unions for extinction is unmistakably linked to the efforts of Rauner and his allies to gut the legal protections of injured workers. At GWC, we see this in legislative attempts to scale back workers’ compensation laws and to institute arbitrary caps on the amount of compensation a worker or their family can receive when they are injured or killed on the job. The reason is simple: exploiting the labor of workers is profitable and unions, by design, prevent that from happening.
Today’s decision should be a rallying cry to every working family in Illinois: either recommit yourself to the goal of protecting working people through vigorous union advocacy, or brace for the impact of what will come if the hard-fought rights of Illinois workers give way to a system where they are replaceable commodities, stripped of all political and economic power.
Illinois has witnessed some of the most significant milestones in the history of organized labor in the United States. We have led by example and fought for decades to improve the lives of workers to the point where the voice of labor is heard at every level of government and in the courts. The next historical challenge is defeating the threat to end that forward progress at the grass roots level. It begins in the workplace, at the ballot box and in standing with fellow union workers to deliver a simple message to a privileged elite who would threaten their collective welfare: we will not be broken.
Today, we stand in solidarity with the men and women of organized labor.
Fraternally Yours,
Louis C. Cairo