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The United States Supreme Court to Again Hear Fair Share Fee Challenge
Mar 11, 2019

The United States Supreme Court to Again Hear Fair Share Fee Challenge

By:  Mark Volcheck, Esq.

            Last year, in the case of Friedrichs v. California Teachers Association, et al., the United States Supreme Court was asked to overturn nearly forty years of precedent and hold that fair share fees for public sector labor unions are unconstitutional.  When the case was argued in January of 2016, the writing was on the wall that the conservative majority of the court would take the opportunity to stick it to the unions.  However, after the case was heard, but before it was decided, Justice Antonin Scalia died.  His absence resulted in an equal balance of conservative and liberal justices.  Predictably, the vote among the justices was deadlocked on the issue of fair share fees at four to four.  Since the lower court had held that the fees were constitutional, they narrowly survived the challenge.  Such reprieve, however, is likely to be short-lived as the Supreme Court accepted another challenge to fair share fees this term in the case of Janus v. AFSCME, Council 31, et al

            After Justice Scalia’s death in February of 2016, President Barack Obama nominated Judge Merrick Garland to be Scalia’s replacement.  The next step was for the Senate to vote on confirming the nomination.  However, the Republican controlled Senate never presented the nomination for a vote and Judge Garland became the longest waiting Supreme Court nominee without a confirmation vote in the history of the country.  Meanwhile, throughout 2016, candidate Donald Trump promised in his campaign to appoint someone with the political philosophy of Scalia.  Upon President Trump’s assumption of the office, he nominated Judge Neil Gorsuch to replace Scalia.  This time, the Senate held its confirmation vote and Gorsuch was confirmed.  Accordingly, the conservatives are back in the majority on the Court.

            Upon such background, the Janus case was accepted by the Supreme Court for review.  The Plaintiff, Mark Janus, is an Illinois state employee who works in a bargaining unit represented by AFSCME, Council 31.  The union and state are parties to a collective bargaining agreement that requires those employees of the bargaining unit who choose not to be members of AFSCME to pay to the union a fair share fee.  By Illinois statute, such fee is authorized to be part of the collective bargaining agreement so long as the fee represents a proportionate share of the costs concerning the collective bargaining process, contract administration, and the pursuit of matters affecting wages, hours and conditions of employment.  By law, the fee cannot exceed the charge for dues uniformly required of union members.  For Janus, such fee amounts to about 78% of full union dues.  He claims that his required payment of such fee violates his First Amendment right to free speech, petitioning, and association, as secured by the Fourteenth Amendment to the United States Constitution.  

            Janus is asking that the Supreme Court overturn the 1977 case of Abood v. Detroit Board of Education, 431 U.S. 209, (1977), which held that a state may permit a public sector exclusive bargaining representative to charge nonmembers a mandatory agency fee “insofar as the service charges are applied to collective bargaining, contract administration, and grievance-adjustment purposes.” 431 U.S. at 232.  The Abood holding rests on two enduring propositions.  First, the Court noted that the principle of exclusive union representation is “a central element in the congressional structuring of industrial relations” that a state may properly choose to establish for its own governmental units. 431 U.S. at 220, 223. Second, when a state makes such a choice, “the designation of a union as exclusive representative carries with it great responsibilities.”  431 U.S. at 221.  The Court explained that “[t]he tasks of negotiating and administering a collective bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones.”  Id.  Such tasks, the Court stated, “often entail expenditure of much time and money.”  Id.  “Moreover, in carrying out these duties, the union is obliged ‘fairly and equitably to represent all employees..., union and nonunion,’ within the relevant unit.”  Id. (quoting Machinists v. Street, 367 U.S. 740, 761 (1961)). 

            The Court in Abood concluded that it is consistent with the First Amendment to require all represented employees to pay a share of the union’s expenses as their exclusive collective bargaining representative.  “A union shop arrangement has been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become ‘free riders’ - to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees.” 431 U.S. at 222.  To preserve the First Amendment rights of non-member employees, the Court held that such fee not include expenses “for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to [the union’s] duties as collective bargaining representative.”  431 U.S. at 235. 

            Most Court watchers predict that Justice Gorsuch will side with the conservatives and strike down fair share fee provisions for public sector employees.  It is apparent that this issue has become highly politicized for the Court, as it is the conservatives on this issue who have all snubbed their noses at their own purported principles of jurisprudence, namely judicial restraint, adherence to precedent, and federalism.  The plaintiff in this case is represented by National Right to Work Legal Defense Foundation, a group funded by corporatist interests, including the usual suspects: Koch backed groups, the Walton Family Foundation, and the Bradley Foundation. 

            Based on the track record of National Right to Work Legal Defense Foundation and like-funded groups, the judicial attack on fair share fees is only one step in a nationwide strategy to eliminate the power of unions.  For example, in Wisconsin, such groups pushed through state legislation that, among other draconian measures, eliminated fair share fees and drastically reduced the terms and conditions of work that are subject to bargaining.  The goal for these groups is to create a system so weighted against the worker that employees give up the fight as a matter of futility.  If the subjects for bargaining are so limited such that the unions cannot effectively advocate for workers, why be a member?  We all can remember when the Republicans in Ohio attempted to effectively eliminate collective bargaining rights rights for public sector workers.  Such measure was championed by governor Kasich upon the purported grounds of financial responsibility.  As it turned out, the citizens overwhelmingly defeated the attempt by voter referendum and Kasich ran for president bragging about the great surplus the state had amassed by gutting local government funds.  We will see Senate Bill 5 styled legislation again.  The question will be whether the unions have the resources and the citizens have the wherewithal to once again fight back.

            Based on the issue of fair share fees alone, I would not expect the OPBA to suffer great losses, as most OPBA bargaining unit employees employed under collective bargaining agreements without fair share provisions elect to be members.  However, one would expect unions representing public employees outside of law enforcement to suffer greater losses.  This hurts us all, as a strong union presence will be necessary in the future to defeat inevitable legislation to further diminish our rights.  A decision in the Janus case will be issued in 2018.

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