October 3, 2017

Supreme Court Will Hear Agency-Fee Suit; Unions Fearful

The U.S. Supreme Court Sept. 28 announced that it will consider an Illinois case concerning agency-fee payments by nonmembers of public-employee unions that could threaten the financial security of that segment of the labor movement if the high court sets aside its own 40-year-old precedent.

The decision to hear the arguments in Janus v. AFSCME Council 31 renews a battle that was stalled early last year by the death of Justice Antonin Scalia in a case on the same issue brought against the California Teachers Association by several Teachers. That case, known as Friedrichs, wound up in a 4-4 deadlock that had the effect of maintaining the 1977 ruling in Abood v. Detroit Board of Education that public-employee unions were entitled to collect a form of dues from nonmembers to help cover the costs of their work in areas like collective bargaining and grievances, but had to rebate the portion of those payments that would have gone to political activities.

Anti-Union Forces Funding

In both Friedrichs and Janus, whose plaintiffs’ costs have been underwritten by wealthy right-wing interests intent on weakening public-employee unions, the plaintiffs have contended that any functions those unions perform have a political component, since wages and fringe benefits are paid for by taxpayers and divert money from other public purposes. Union officials have said that the fact that public workers would essentially be arguing against unions negotiating contracts that would benefit them is proof that they are being manipulated by their financial backers.

The American Federation of State, County and Municipal Employees, whose Illinois district council is the union to which lead plaintiff Mark Janus must pay the agency-shop fees in his role as a worker for that state, called the case “a blatantly political and well-funded plot to use the highest court in the land to further rig the economic rules against every­day working people.” The union’s website said that if the high court ruled in favor of the plaintiffs, the ripple effect “would make the entire public sector ‘right to work’ in one fell swoop.”

Because of the potential ramifications, public-employ­ee unions throughout the nation have been preparing for the possibility of the loss of agency-fee rights, with a negative decision potentially leading to some regular dues-paying members opting to cease payments as well. District Council 37, which is AFSCME’s New York City affiliate, has spent the last couple of years signing up nonmembers, who in many cases had that status not due to their political beliefs but because the union had lagged in signing them up under prior leadership.

Dues Check-Off Crucial

The mechanism for collecting agency-fee payments, just as for ordinary dues, is through automatic payroll deduction from employee checks. Following an ill-fated three-day transit strike in late 2005, Transport Workers Union Local 100 had its right to dues check-off suspended for an extended period, and at one point more than half its members declined to pay by hand their dues money. That, however, involved a unique circumstance that made them less inclined to rally to the cause of their union: not only had they wound up with a less-than-stellar contract that forced them for the first time to pay a portion of their health-care coverage, but they also lost six days’ pay for the three days on strike under the state Taylor Law, which also triggered the dues-deduction suspension.

Even if all dues-payers voluntarily stayed current should the Supreme Court case lead to an eventual overturn of New York’s Agency Shop Law, it would be considered a serious blow to the unions, which argue that such a ruling would reward “freeloaders” who could seek most of the benefits of membership at no charge.

Lee Saunders, the president of the 1.6-million-member AFSCME, said in a statement, “This case is yet another example of corporate interests using their power and influence to launch a political attack on working people and rig the rules of the economy in their own favor. When working people are able to join strong unions, they have the strength in numbers they need to fight for the freedoms they deserve, like access to quality health care, retirement security and time off from work to care for a loved one.” He added a hopeful note, saying, “The merits of the case, and 40 years of Supreme Court precedent and sound law, are on our side.”

Blueprint for Pessimism

Those latter arguments could have been made, however, regarding the Friedrichs case, yet at the time of Justice Scalia’s death, it was thought—based on questions asked during oral arguments by potential swing Justices including Anthony Kennedy and Chief Justice John Roberts—that a 5-4 vote to overturn Abood was looming. Minus Justice Scalia’s vote, the court deadlocked at 4-4.

Then-President Barack Obama tapped Merrick Garland as his nominee to succeed Justice Scalia, but the Republican-led U.S. Senate, egged on by the party’s presidential front-runner, Donald Trump, refused to even sched­ule hearings on a possible confirmation. That meant the seat remained vacant when Mr. Trump took office, and his choice for the post, Neil Gorsuch, was confirmed. Justice Gorsuch is expected to side with other politically conservative Justices on the issue.

State AFL-CIO President Mario Cilento said in response to the Supreme Court’s decision to hear Janus, “Let’s call it what it is: an attack on the freedom of working men and women to have a voice in the workplace. Well-funded powerful corporations are behind this case and are out to destroy the American dream. Here in New York, we are ready, we are organized, and we are making sure our members, the general public and all elected officials understand that the labor movement is the backbone of the middle class.”

Depends How Sweeping

One veteran uniformed-union leader, speaking conditioned on anonymity, said that if the high court merely ruled that unions had to provide “free bargaining” to those who chose not to pay for that service, a negative decision might not be “the death blow to unions that we all fear.”

He explained, “As soon as a ‘free rider’ gets in trouble and has to hire his or her own attorney or can’t provide prescription drugs, eyeglasses and hearing aids with the welfare-fund money…the free riders will realize the error of their decision.”