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State of the Unions: the Supreme Court Case that Could Permanently Change Unions

State of the Unions: the Supreme Court Case that Could Permanently Change Unions

Supreme Court

On Monday, February 26, the Supreme Court will hear oral arguments on the case of Janus v. American Federation of State, County, and Municipal Employees (AFSCME). Many are deeming Janus to be the most important labor case in recent memory. Why is it so significant?

Background: Abood v. Detroit Board of Education
The decision in Janus could change the way that unions work, and specifically how they collect money from the employees they represent. The foundational case governing this area of law is the 1976 Supreme Court decision of Abood v. Detroit Board of Education. In this decision, the Court upheld an “agency shop” arrangement in the public sector in which all employees who are represented by the union must pay a fee for this service, whether or not they choose to become a union member. Several public school teachers who were not union members, including D. Louis Abood, objected to a Michigan law that allowed for this “agency shop” set up. They did so on several grounds, including the claim that being compelled to pay union fees violated their First Amendment rights to freedom of speech and association, as they supported neither public sector unions in general nor the specific political activities of this union. The Court held that unions could require people to pay fees to finance collective bargaining and contract administration, but that these expenses had to be kept separate from any political activities, for which unions could not compel people to pay. The Court said that any infringement on free speech that compulsory fees produced were outweighed by the government interests in promoting “labor peace” (peaceful labor relations) and avoiding a “free rider” problem (a situation in which employees benefit from union representation while refusing to pay dues).

From Abood to Janus
In the half century since the decision, the ability to collect fees from nonmembers, often referred to as “fair share” fees, has undergirded the operation of unions in the United States. Twenty-two states currently have agency shop laws, and unions have relied heavily on funding from these fees to finance and expand their activities. Public sector employees have repeatedly challenged Abood and the constitutionality of compulsory fees for representation. But time and time again, the Court has affirmed Abood, nuancing but not wavering from its original judgement.  

Mark Janus’s case is the latest in this pattern of challenges. Janus, who works at the Illinois Department of Healthcare and Family Services, argues that the fair share fee required by AFSCME violates his First Amendment rights. The lower court rejected his argument on the grounds that it did not have the power to overturn Abood, an act that would be necessary in order to rule in his favor.

Given that the Court has remained steadfast in its Abood ruling, it might seem like this case would be an easy win for AFSCME. So why are the media, advocates, and the public endowing this case with such immense importance?

The weight of this case comes from the current makeup of the Court. The question of compulsory union dues has always been an intensely political one. Most of the challenges to Abood have been organized and funded as part of a larger campaign to undermine the power of unions. Opponents of agency fees thought they could finally achieve their goal in the 2016 case Friedrichs v. California Teachers Association. But the Court ended up in deadlock, 4-4 after the death of Justice Scalia. This proved a short-term win for labor advocates: it upheld the pro-union lower court ruling, but was not precedent-setting. Janus is largely understood as the follow up to Friedrichs, making the same claims, but this time to a friendlier court. Justice Neil Gorsuch, a Trump appointee, holds the deciding vote, assuming that the other eight justices will not change their positions.

The Impact of Janus
If Janus wins, this case will have enormous implications for American unions. Eliminating fair share fees will reduce the amount of money unions have to operate, shrinking their power. The URJ has long been a staunch supporter of unions, resolving to “support the rights of workers to organize and bargain collectively” and “oppos[e] adoption by states of ‘right-to-work’ laws,” which bar an agency shop arrangement. These commitments compelled us to sign on to an amici curiae brief in support of AFSCME. The brief, led by the National Women's Law Center and the Leadership Conference on Civil and Human Rights, asserts the importance of unions for protecting workers’ rights, and specifically highlights the benefits of unions for women and people of color. Empirical evidence supports the value of fair share fees for improving workers’ economic opportunities, and the Court has already deemed an agency shop arrangement to be compatible with the First Amendment. For these reasons, we hope the Court upholds precedent and protects the ability of unions to fight for workers’ rights.

Susannah R. Cohen is an Eisendrath Legislative Assistant at the Religious Action Center of Reform Judaism in Washington, D.C. She recently graduated from Columbia University, and grew up in New Rochelle, New York as a member of Westchester Jewish Center in Mamaroneck, NY. She is thrilled to be combining her deep Jewish values with her passion for policy by working on her portfolio topics, which include economic justice and women's issues, as well as working with Women of Reform Judaism.

Susannah R. Cohen

Published: 2/23/2018