The Most Important Supreme Court Case You’ve Never Heard Of

By David Bander, New Leaders Council New Jersey

“The subversive thing about labor is not the strike, but the idea of solidarity.”
-Thomas Geoghan, Which Side Are You On?

As a union organizer one of the first lessons I learned was that the union was only as strong as the members who participated in its operations and activities. If a member complained that “the union” was not doing enough, my response was, “You are the union.” That is to say, the union was only as strong as the solidarity among its members.

Unfortunately, union solidarity is about to get much more difficult. The United States Supreme Court recently accepted review of the case Janus v. AFSCME Council 31 (2017). The issue before the Court is the constitutionality of mandatory “agency fee” payments for public employees. The Court is widely expected to rule that these payments are unconstitutional under the First Amendment, thereby making all public sector employment “right to work.” It would be a devastating blow to public sector labor unions.

Some background is in order. In a typical unionized workplace, the union is obligated to collectively bargain for all of the employees that it represents. In order to cover the union’s costs, it collects dues from its members. However, not all represented employees are required to become members of the union. Although these non-members do not get the benefits of full membership in the union, they receive all the benefits of the union contract. To discourage “free riding” many states permit the mandatory collection of agency fees from non-members. These fees allow the union to recover its representation costs from non-members.

The Supreme Court has been chipping away at the right of public sector unions to collect agency fees for several years now. In Knox v. SEIU (2012) and Harris v. Quinn (2014), the Court’s conservatives showed skepticism toward the very concept. Requiring the payment of these fees, according to the conservatives, could be considered a violation of the First Amendment, which prohibits “compelled speech and association.” The Court’s conservatives essentially signaled that they would be willing to find agency fee agreements unconstitutional if the right case came along.

The right case, Friedrichs v. California Teachers Association, came along in 2016. It was expected that the Court would rule 5–4 against the mandatory collection of agency fees. However conservative Justice Antonin Scalia died unexpectedly and the remaining 8 justices tied 4 to 4, meaning that agency fee arrangements could continue. Since that time, Donald Trump was elected President and Neil Gorsuch was appointed to the Supreme Court. Gorsuch is likely to join the Court’s 4 other conservatives to strike down agency fees. The Court’s decision is expected before June of next year.

If the mandatory collection of agency fees is held unconstitutional the “free rider” problem would be unchecked, because public employees could receive all the benefits of a union contract without paying a dollar toward the union for its efforts. Essentially, it would be an embrace of the “every person for himself” ethos that is characteristic of the Trump Era. Public sector unions will almost certainly face a significant drop in membership and revenue, as former members or agency fee payers realize that they can reap all the benefits of a union contract without any cost to themselves. With reduced resources, unions will have less bargaining power and political clout.

Although this sounds bleak (and it is), there is reason to hope. Unions will, clearly, have to undergo dramatic changes in order to respond to a “right to work” public sector. Fundamentally, they will have to reaffirm the concept of union solidarity to members and potential members. But a strong labor movement has never been more important, as more and more workers confront a changing economy that is global in scale and dismissive of traditional workplaces and employment relationships. The work must, and will, continue.

David Bander is a labor attorney at Mets, Schiro & McGovern, LLP, a councilman in Plainsboro Township, and a former union organizer. He is also a member of the New Leaders Council — New Jersey Advisory Board and a 2013 NLC NJ fellow. He can be reached at dbander@msmlaborlaw.com.