The Supreme Court's Next Big Union Fight: Six Key Questions

U.S. Supreme Court building in Washington, D.C. (Photo: Diego M. Radzinschi/ALM)

Anti-union groups are making another major push in the U.S. Supreme Court to eliminate mandatory union dues, so-called “fair share” fees, for millions of public sector workers. This time, a full bench—if it takes the case—could end the deadlock that frustrated their efforts last year.

The latest attempt—Janus v. AFSCME—comes on the heels of the court's 4-4 divide in a nearly identical case—Friedrichs v. California Teachers Association. Before the death of Justice Antonin Scalia, the unions appeared headed for defeat in Friedrichs—with Scalia a likely vote against them. The views on the issue of Justice Neil Gorsuch, Scalia's successor, are unknown, but he may well hold the key to whether agency shop fees survive.

The stakes are high for unions. Agency shop fees are charged non-union members to cover the costs of collective bargaining by unions serving as the exclusive representatives of a workplace's employees. Political activities are excluded.

The filing of the Janus case, brought by the National Right to Work Foundation, is no surprise. Friedrichs itself was carefully crafted by the Center for Individual Rights to respond to recent hints from Justice Samuel Alito Jr. Alito used two decisions to indicate that he believed a landmark union-fee case—Abood v. Detroit Board of Education—violated the First Amendment and should be overturned. The Abood case, decided in 1977, provided the constitutional underpinnings for the union fees. The Supreme Court has reaffirmed Abood at least four times in the last 40 years.

If the high court passes on Janus, the National Right to Work Foundation has more challenges pending involving public sector workers in Pennsylvania, Kentucky, Massachusetts, California, New York and Connecticut. Here are six key questions about the latest attempt from union foes to challenge shop fees.

How is the new case any different from the California teachers union dispute?

There are a number of differences, but none is major in substance. First, the parties asking the justices to hear the case are different. Mark Janus, a child support specialist for the Illinois Department of Healthcare and Family Services, is the lone petitioner. In the Friedrichs case, Rebecca Friedrichs, a California public school teacher, was joined by nine other teachers and the Christian Educators Association International.

Second, the unions being challenged also differ. In Janus, the union is the American Federation of State, County, and Municipal Employees, Council 3. Friedrichs named the California Teachers Association. The California attorney general intervened and was a respondent in the Supreme Court.

Third, the political organizations pushing the challenges forward also differ. The National Right to Work Legal Defense Foundation and the Liberty Justice Center are behind the Janus petition. The D.C. based Center for Individual Rights initiated the Friedrichs case.

The new case urges the justices to overrule Abood and to hold that public-sector agency fee arrangements violate the First Amendment. The Friedrichs case urged the same results, but also asked the justices to hold that the First Amendment is violated when public employees are required to opt out of fees for non-chargeable union activities, rather than affirmatively consent to them.

What are the chances the Supreme Court takes the case?

When the justices heard arguments in the Friedrichs challenge in March 2016 with Scalia on the bench, the outlook looked grim for the unions. Because the court gives no indication of why or on what issue it deadlocks in a 4-4 affirmance, it is only clear that four justices—most likely the four conservatives judging from their comments during arguments—were ready to vote against the union's position.

Those four are still on the court and if they still feel strongly, they may well vote to take the Janus challenge, especially if they believe they can find a fifth vote to decide the case. So, yes, the chances are good that the court will take the case. Only four votes are needed to grant review.

On the other hand, some justices may be reluctant to jump back into the issue so soon after a 4-4 deadlock, especially if the result would be to overturn a 40-year-old precedent with a new justice making the difference. The optics are not good because the court would be viewed by some in the public as a political—partisan—instrument.

The court's back to nine members. Is any one justice key here?

Since the court split 4-4 in Friedrichs, the justice on the spot would very likely be the newest justice—Neil Gorsuch—if the court takes on a new case. Gorsuch is not considered particularly labor-friendly, but at issue is stare decisis and a 40-year-old precedent.

What are both sides saying about the potential impact?

The numbers offer one clue to the potentially wide impact: There are nearly 11 million union-represented employees in 22 states that don't have laws prohibiting agency fees. Roughly half of those employees—7.8 million—are in the public sector, according to the Labor Department's bureau of labor statistics.

Prohibiting “fair share” fees would have, among other repercussions, a serious financial impact on the survival of public sector unions, pro-union groups said. It would jeopardize meaningful collective bargaining, and endanger “labor peace.”

The Economic Policy Institute, for example, said a union loss in this case could “profoundly affect the ability of millions of public-sector workers to improve their wages and working conditions” and further the wage stagnation dragging down the economy. Public employees in states where agency fees are barred earn less than those in states that allow them, the institute said.

But pro-right-to-work groups, like the Heritage Foundation, counter that right-to-work states that bar agency shop fees have better business growth, wages and manufacturing employment than non-right-to-work states, although the cost of living is generally lower in the former states. And allowing workers to choose whether to pay union fees, they contend, will make unions more accountable, more effective representatives.

“For too long, millions of workers across the nation have been forced to pay dues and fees into union coffers as a condition of working for their own government,” said Mark Mix, president of the National Right to Work Foundation, calling the Abood decision a “nearly half-century-old mistake.”

Should private unions care about how the Janus case is resolved?

Yes. A decision siding against unions could mean that private unions could face new attacks, said Rachel Gumpert, press secretary for Unite Here, which represents about 250,000 workers throughout the U.S. and Canada who work in the hotel, gaming, food service, airport, textile, manufacturing, distribution, laundry, and transportation industries. Although Janus involves only public sector unions, Gumpert said an unfavorable decision would indicate a “blatant attempt to break worker unions at any cost” and existing laws protecting private sector unions will face new attacks.

And although they are not private sector unions, a decision against the union agency shop fees could also affect mandatory dues arrangements of state bars. In Friedrichs, 21 past presidents of the D.C. Bar said, in an amicus brief, that not only states and unions, but integrated bars have long relied in structuring their activities on Abood and Keller v. State Bar of California (1990). Overruling Abood, they warned, “would have a profoundly destabilizing impact on bars all over the country.”

What's the worst-case scenario for public-sector unions?

The overruling of Abood. As Justice Elena Kagan wrote in dissent in 2014's Harris v. Quinn: “[t]he Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the nation.”

“If the court overrules Abood and finds that agency fees constitute compelled speech or association and thereby contravene the First Amendment, the court will constitutionalize a right-to-work regime for every public sector job in the United States,” Benjamin Sachs, a Harvard Law School professor, wrote in a recent post at the blog On Labor. “As a constitutional rule, this public-sector right-to-work requirement could not be undone by any legislature, even by the U.S. Congress.”