For 40 years, right-wing activists and fronts for the 1% have had their knives out for a Supreme Court precedent that protects the ability of public employee unions to represent their members and even nonmembers, and to speak out on matters of public interest.
That precedent faces a mortal threat in a case scheduled for oral argument at the Supreme Court on Monday. Indications are that a conservative majority of justices is poised to overturn it. That would have implications for worker rights, principles of fair compensation and income inequality, none of them good — unless you’re a millionaire.
The case is Janus vs. AFSCME. The issue in the case is the “agency fee,” which public employee unions in 22 states, including California, charge workers who are represented by those unions. The fee is a subset of union dues, which are paid by members. It’s supposed to cover only contract-related union functions such as contract negotiations and enforcement, including grievance procedures.
The free-rider argument as a justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly.
Through the agency fee, workers in union-represented jobs pay for those services but are shielded from paying for political activities with which they disagree. In those 22 states, the unions are legally bound to represent all workers in jobs under their jurisdiction, even if they aren’t members. The fee obviously is a key to unions’ performing all their functions, for if it weren’t required, many members would quit the union, taking their dues with them and leaving the union without the resources to do its job. That’s what union opponents would like to see.
As my colleague David G. Savage has reported, the nominal plaintiff in this case is Mark Janus, a child support worker for a state agency in Illinois who objects to the $45 monthly fee he pays to the American Federation of State, County and Municipal Employees, ostensibly because the fee covers political positions he doesn’t support. But the case was initiated by the state’s Republican governor, Bruce Rauner, who had to duck behind Janus when a court ruled he had no standing to sue because he wasn’t paying the fee.
The groups backing the Janus case like to dress up their quest as a campaign to protect the free speech of teachers, healthcare workers or other public employees. We’ve explained before that it’s nothing of the kind. The cases aren’t about free speech or improving education for children. They’re about silencing the political voice and the negotiating strength of teacher and other public employee unions by cutting off their revenues. The campaign is a prime example of pure political cynicism, garbed with faux principle and backed by billions of self-interested dollars.
Abood established the principle that while public employees represented by unions couldn’t be forced to support union political positions with their dues, they shouldn’t get a free ride on the nonpolitical activities of unions either.
Thus did the “agency” or “fair share” fee receive the Court’s seal of approval. The implicit idea was to address the free-rider problem — people who received the benefit of union representation but didn’t want to pay.
Anti-union forces rapidly geared up to combat Abood. They pressed for state laws to invalidate agency fees. In California, they brought three anti-union initiatives to the ballot between 2000 and 2016, including a 2005 measure sponsored by then-Gov. Arnold Schwarzenegger. All three failed.
And they went to court.
The labor-oriented Economic Policy Institute and Mary Bottari of In These Times have documented that the anti-Abood coalition includes right-wing groups such as the American Legislative Exchange Council, or ALEC, and the State Policy Network. They and other sponsors of these legal cases and related legislative initiatives are affiliated with the Koch brothers, the Sarah Scaife Foundation, the Mercer Family Foundation and the Walton Family Foundation.
Do you really think these people have the interests of ordinary workers at heart? Me neither.
The lawsuits aimed at overturning Abood have been relentless. In 2012, the Supreme Court heard Knox vs. SEIU, a California case that turned on the type of fee notice unions had to give nonmember employees. The court upheld Abood, but Justice Samuel Alito, who wrote the majority opinion, expressed doubts about the precedent. “The free-rider argument as a justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly,” he wrote — “one that we have found to be justified by the interest in furthering ‘labor peace,’ ” but “an anomaly nevertheless.”
Alito implied that he would take a hatchet to Abood if the opportunity arose, giving heart to anti-union forces.
That drew pushback from Justice Elena Kagan, who replied that “the Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts … across the nation.”
Kagan also pointed out the downside of stripping unions of their financial resources. The agency fee recognizes the special role of unions in public employee bargaining, she observed, because they must represent members and nonmembers equally. “It ensures that a union will receive adequate funding, notwithstanding its legally imposed disability … so that a government wishing to bargain with an exclusive representative will have a viable counterpart.”
Then came Friedrichs vs. California Teachers Assn., a 2016 case, also from California, that took direct aim at Abood. Friedrichs was about to give the court’s conservatives the opportunity they sought to overturn Abood, but an act of God intervened: the death of Justice Antonin Scalia, who was expected to join the anti-Abood majority. That left the court split 4-4, which meant the pro-Abood decision of the 9th Circuit Court of Appeals in San Francisco stood. Now that Scalia’s seat has been filled by the even more conservative Neil Gorsuch, the anti-Abood cabal feels even more confident. At its core, Janus is just an Illinois version of Friedrichs.
The backers of these lawsuits have tried to turn the “free-rider” principle on its head, arguing that mandatory agency fees turn nonmembers into “forced riders.” They say that the resistance of some workers to paying even agency fees shows that those workers don’t believe they get any benefit from union representation.
That notion was challenged in a friend-of-the-court brief filed by 36 moderate and progressive economists. They observed that workers might refuse to pay voluntary fees out of “simple self-interest” — that is, saving the money, even if they appreciated the union’s representation. This, of course, is exactly what union opponents are hoping for.