Supreme Court Hears Major Challenge to Public Sector Unions
David Bander, NLC New Jersey
The Supreme Court heard oral argument this week on Janus v. AFSCME Council 31, a case of great importance to public sector labor unions. The issue before the Court is the constitutionality of mandatory “agency fee” payments for public employees who choose not to become full members of their union. 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.” This would be a severe blow to public sector labor unions. I wrote about the case in an earlier column in The New Leader.
By way of background, 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.
This issue was before the Court in 2016, in Friedrichs v. California Teachers Association, but the death of Justice Antonin Scalia left the Court deadlocked 4–4 along partisan lines. Since then, Donald Trump was elected President and Neil Gorsuch was appointed to the Court.
During the Janus oral argument, the eight justices that were on the Court in 2016 did not appear to change their minds significantly. The conservative justices took issue with the very concept of mandatory agency fees as being inconsistent with the First Amendment, which prohibits “compelled speech and association.” Justice Kennedy questioned why employees should be “forced” to contribute money to an organization whose political goals they do not support (which he derisively characterized as “advocat[ing] for a greater size workforce, against privatization, against merit promotion…for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, [and] for increasing taxes”).
Justice Alito questioned whether, if mandatory agency fees were upheld, there was any limit on the authority of the state to compel its employees’ speech. And Chief Justice Roberts showed skepticism that the Court’s decision would cause great upheaval, wondering whether the need to attract voluntary payments would perhaps “make the unions more efficient, more effective, more attractive to a broader group of their employees.”
By contrast, the liberal justices argued for deference to the established system of union representation. Justice Sotomayor asserted that states have a compelling interest in regulating their employment decisions, and if they choose to mandate the payment of agency fees in the name of “labor relations and labor peace,” that choice should be respected.
The liberals also considered the practical effects of a decision against mandatory payments. Justice Ginsburg warned that free riding would “drain [a union] of resources that make it an equal partner” in the collective bargaining process. Justice Kagan warned of the possibility that “twenty-three states, the District of Columbia, Puerto Rico, all would have their statutes declared unconstitutional at once,” which would materially affect “the livelihoods of millions of individuals.” Kagan stated that the Court had never issued a decision with such immediate and far-reaching impact, and there was no justification for such action here.
The Court’s newest member, Neil Gorsuch, did not ask questions or comment during oral argument. If the four conservative and four liberal justices hold to the positions that they took in the 2016 Friedrichs case, then Gorsuch would be the tie-breaking vote. While it would be nice to think that Gorsuch may side with the liberals, the evidence points to him being a doctrinaire conservative. Therefore it is likely that he will vote to overturn mandatory agency fee payments.
A decision in the case is expected by the end of the Court’s term in July.
David Bander is a labor attorney at Mets, Schiro & McGovern, LLP, a councilman in Plainsboro Township, NJ, 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.
