Janus v. AFSCME – Threat to Public-sector Unions

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By Chaitram Aklu

The Supreme Court will hear the case of Janus v. AFSCME (a public- sector union) in this session and a decision will be given by June 30, 2018. If the court rules in favor of the plaintiffs, it could reduce the strength of public-sector labor unions to bargain effectively on behalf of and to protect the rights and gains of their members across the United States. Unions argue that this case is another attempt to break public-sector unions in particular and unions in general.

The case involves two Illinois State employees, Mark Janus (AFSCME) and Byron Trygg (Teamsters) who filed a suit claiming that the state’s law violates their First Amendment rights by requiring them to pay agency fees to the union which they chose not join because they disagree with how the unions advocate. Trygg also claims he has “sincere religious objections to associating with the Teamsters.” Their union by law, however, must represent them by way of collective bargaining and they benefit from any and all gains won by the union.

Twenty two states have agency fee laws which mandate employers to deduct these “fair share” fees from the employees pay and remit them to the unions to cover collective bargaining for nonmembers of the union. “Fair share” dues are so called because all workers (members and nonmembers) benefit from collective bargaining – which includes increased wages and salaries. 28 states have banned private sector unions from collecting fees from nonmembers in the collective bargaining unit.

Collective bargaining incurs tremendous costs so a halt on fees would be a blow to any union. Employees who choose to continue paying their fair share would have to remit dues directly to their union. The loss of union dues would curtail the union’s power to bargain effectively for higher wages and benefits for all workers. As an AP report noted “If the highest court agrees (with Janus) it could threaten the financial viability of unions and reduce the clout of labor.”

Janus v. AFSCME was filed by the plaintiffs to ask the court to overrule a landmark case, Abood v. Detroit Board of Education (1977), and “hold ‘agency fee’ requirements for government employees invalid under the First Amendment of the United States Constitution.,” according to the suit. What makes this case so important for public sector workers is that the plaintiffs are represented by two law firms: the National Right to Work Foundation, which (according to reports) is the legal department of the National Right to Work Committee which receives it funding from the Koch brothers Freedom Partnership, the Charles G. Koch Charitable Foundation, Donors Trust and Donors Capital Fund. The other is the Liberty Justice Center. Their disclosure statement states they “are technically not law firms, but legal aid foundations.”

However Michael Mulgrew, President of the United Federation of Teachers in New York City, in a letter to members wrote “this case is paid for by people who want to destroy unions so your benefits and rights can be taken away, they want public unions to be barred from requiring non-members to pay fair-share or agency fees to cover their portion of costs associated with collective bargaining services.” And a joint statement from the four biggest public sector unions (AFSCME, AFT, NEA and SEIU): notes in part, “The billionaire CEOs and corporate interests behind this case, and the politicians who do their bidding, have teamed up to deliver yet another attack on working people by striking at the freedom to come together in strong unions.——- the people behind this case simply do not believe that working people deserve the same freedoms they have: to negotiate a fair return on their work.”

In March 2017 a Federal Appeals Court in Chicago dismissed the Janus case. It ruled that paying union dues were constitutional citing the precedent, Abood v. Detroit Board of Education (1977) which held that nonmembers could be required to pay fees to unions as long as the funds go to collective bargaining and not to political activities. The court did rule that “requiring nonmembers to pay for political activities would violate their free speech rights in the First Amendment of the United States Constitution.” The case was filed by a Detroit school teacher, D. Louis Abood, who objected to his union’s endorsement of political candidates.

Three important cases (among others) will be cited in arguing Janus. Knox v. SEUI (2002) which ruled that public sector unions could not increase fees for nonmembers in the middle of a union dues year without their consent; Also, Harris v. Quinn (2014) which ruled that state-paid, in home care workers cannot be compelled to pay union dues even for collective bargaining. The court did not view the home care employees as public-sector employees. It is important to note that it did not block organize labor from collecting dues from other public employees. Then, last year (2016) Fredericks v. California Teachers Association, an equally divided (4-4 following the death of Justice Antonin Scalia) Supreme Court affirmed the Ninth Circuit’s decision upholding fair-share fees based on the reasoning in Abood. As a result, Abood remains a valid and binding precedent.

The lawyers for the plaintiffs are arguing that Abood was wrongly decided and that it should be overruled. In the filed petition, they presented 7 reasons to support their argument, number one of which is “Abood did not give a First Amendment issue of this importance —- better treatment.”

As we await the Court’s hearing and decision, that could make it voluntary for public sector workers to pay union dues as is already the case in right–to-work states, here are some important outcomes of some previous court decisions. Wisconsin outlawed collective bargaining rights for public sector unions in 2011. Since then median salaries have fallen 2.6 percent and benefits declined 18.6 percent. Lydia DePillis wrote “Nobody disputes, however, that Act 10 had a devastating impact on Wisconsin’s unions, which went from representing 14.1% of workers in the state in 2011 to 9% in 2016.,” in a CNN Money article of Nov. 17, 2017. Wisconsin is one of the 28 Right–to-Work states. Also, in 2005 some fifty percent of the members of the NYC Transport Workers Union stopped paying union dues when a court (after what it ruled was an illegal strike) ordered a suspension of mandatory collection of dues.

The Supreme Court may not rule for the plaintiffs because Abood has withstood numerous tests over the past forty years – even though the four Republican appointees who voted for Frederick’s are now joined by another. If it goes the other way however, it would strike a blow to union membership since paying dues to unions would become voluntary and some employees may want to become ‘free-riders’. But those employees who will see those fees as money saved, and choose not to join their bargaining unit or paying their fair-share, may not be happy for too long. Because of public-sector unions, employees and their families enjoy rights and benefits that others before have made great sacrifices to gain. All of that could be lost.

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The views expressed in this column are solely those of the writer and do not necessarily represent the views of the THE WEST INDIAN.

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