The U.S. Supreme Court will soon decide whether to outlaw mandatory public-sector union dues in a ruling that is likely not to end the fight.
Lead plaintiff Mark Janus brought his challenge against compulsory union dues to the highest court on the alleged ground that his constitutional right to free speech has been violated. The nine justices will have to decide whether he’s right after hearing the case Feb. 26.
The Supreme Court ruling against mandatory dues could cause more legal challenges as unions adopt new strategies on how to collect funding from workers. A ruling in favor of the union, however, could potentially be followed by more lawsuits against forced dues.
The ruling might not be what anyone expects either – leaving the aftermath unknown to an extent. The National Right to Work Legal Defense Foundation (NRTW), which has been assisting Janus in his challenge, has been preparing for any possibility with the hope the court outlaws mandatory dues in the public-sector.
“We know from experience after winning Supreme Court cases before or from what happens after a right-to-work law gets passed and dues are supposed to be completely voluntary,” Patrick Semmens, vice president for public information at NRTW, told InsideSources. “We know that enforcing those rights will be very difficult.”
Labor unions have been known to deploy obstacles to discourage workers from opting out. A common method uses what are known as opt-out windows. Workers in those unions can only opt-out during certain times of the year. Sometimes information is not readily available to workers either.
NRTW helps to enforce right-to-work by assisting workers who feel a union is ignoring the law after a state has passed it. The group writes op-eds and issues press releases to inform workers they can provide legal support in such situations. The group still has ongoing legal cases in states like Michigan which passed right-to-work back in 2012.
“Enforcement is probably going to be the most important followup if they win,” Semmens said. “I suspect we’ll have a lot of calls from workers who will say I heard about that case, I want to exercise my rights under the Janus decision and the union isn’t letting me. That’s probably the most immediate followup.”
Semmens adds that the exact details of the decision will help inform further actions as well once they are known. NRTW is also assisting another case which is aimed at furthering worker choice when it comes to unionization. Hill v. Service Employees International Union asks whether workers should have the right to not associate with their workplace union at all.
“We have another case on petition to the U.S. Supreme Court right now and that brings in the opt-in versus opt-out issue,” Semmens said. “One of the things we’ve seen, and when it came to following up the Harris case, which established voluntarily dues for home healthcare workers, is that the unions have gone and said, well everyone is still considered a member and they’ll have to keep paying dues unless they jump through a hoop to get out.”
Labor unions are normally formed as exclusive representatives which means they speak on behalf of all workers once they get voted in at a workplace – even nonmembers who pay nothing. Semmens adds that he is also hopeful the court will rule against compelled association in the Janus case but still has Hill in case the justices decide not to go that far.
The U.S. Supreme Court will essentially have to determine whether mandatory public-sector union activities are inherently political. Labor unions can currently require dues in states without right-to-work protections so long as nonmembers have the option of paying a nonpolitical fair-share fee. The lawsuit contests that public-sector collective bargaining is indistinguishable from political lobbying.
The U.S. Supreme Court ruling in favor of compulsory union dues would mean decades of case law being upheld. California teacher Rebecca Friedrichs was expected to win in her lawsuit against forced dues but lost because of a tied decision after the death of Justice Antonin Scalia. But such an outcome wouldn’t mean the end of the legal challenges.
“If we have something like in Friedrichs and the court comes in tied four to four, or something like that, there are a number of other cases that we have ongoing that raise these same issues,” Semmens said. “None of them are this close to the Supreme Court, of course, but I know there are at least four or five cases we have.”
The Competitive Enterprise Institute (CEI) has closely followed the case as it has advanced towards the highest court. The free-market think tank has filed legal briefs and issued coalition letters against mandatory union dues. CEI labor policy expert Trey Kovacs suspects more unions might become member-only.
“Another one could be to form member-only unions which basically addresses the free-rider problem,” Kovacs told InsideSources. “You’d have unions maintain the labor laws that are on the books like they do as exclusive representatives, but would only represent the workers that are full-fledged members, and basically let the free-riders go.”
Labor unions have the ability to form members-only unions which aren’t obligated to represent nonmembers. Labor unions generally decide not to become members-only because exclusive representation blocks other labor groups from trying to organize an established bargaining unit – a benefit known as monopoly rights.
Unions do face a tradeoff when they decide to become exclusive representatives. They have to represent every worker whether they pay dues or not. Unions have argued that optional dues encourage workers to free-ride on the benefits they provide since they have to represent everyone anyways.
CEI released a report Jan. 24 arguing that unions should choose to form as member-only groups to avoid the free-rider problem. That way they don’t have to represent workers that don’t pay them. The group also released a recent video depicting a government worker who becomes dismayed about being forced to pay a union.
The Supreme Court ruling in favor of the state workers would directly impact where their membership rates are strongest. The Bureau of Labor Statistics (BLS) found that the public-sector has the highest rate of unionized workers at 34.4 percent. In the private-sector only 6.4 percent of workers are unionized.
But the true impact is still unknown since its unclear how many workers will actually choose to leave. States like Wisconsin saw a significant decline in membership rates while Michigan was more minor. Additionally, federal workers have had the option for years but still maintain fairly steady membership rates.
“What it shows is unions fare fairly well in right-to-work settings,” Kovacs said. “I think a lot of the doomsday predictions are overstated, and I think what will likely happen is the unions will spend a lot more time and money recruiting and attracting members and surveying members what their needs are, rather than spending money on ideological or political purposes.”