The U.S. Supreme Court ruled that public-sector workers cannot be forced to fund union activities Wednesday in a case that could have a huge impact on the labor movement. In a 5-4 decision, the Court ruled in favor of plaintiff Mark Janus.
Janus argued in his legal challenge that mandatory union dues violate his constitutional rights. His attorney argued during the hearing Feb. 26 that workers should have the right to choose whether they want to fund a union or not. The Supreme Court agreed with the arguments in its decision.
“We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern,” wrote Justice Samuel Alito Jr. for the majority.
The American Federation of State, County and Municipal Employees (AFSCME) is the specific union the lawsuit is challenging. But the overall aim is to set a legal precedent at the highest court that would impact all public-sector unions. Critics argue that unions are critical to protecting workers and should be compensated for that work.
“Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned,” wrote Alito.
The U.S. Supreme Court decision overturns decades of case law stretching back to the 1977 case Abood v. Detroit Board of Education. It also impacts the public-sector, where unions have most of their support. Janus v. AFSCME Council 31 is now poised to become one of the most critical labor-related decisions in the country’s history.
“Government workers like me should not have to bear the burden of supporting political and policy causes we disagree with in order to serve our communities and state,” Janus said in a statement Feb. 26. “The right to say ‘no’ to a union is just as important as the right to say ‘yes,’ but for over 40 years, government workers have been denied that right.”
The U.S. Constitution bans being forced to fund political activities or other forms of compelled speech. Labor unions in many states can require payment so long as nonmembers have the option of paying a nonpolitical fair-share fee. But the lawsuit argues that public-sector collective bargaining is equivalent to political lobbying.
The National Right to Work Legal Defense Foundation (NRTW) has been assisting in the lawsuit alongside the Liberty Justice Center (LJC). The two groups are highly supportive of policies that give workers a choice when it comes to being associated with a union. NRTW has been a leading advocate for right-to-work laws for decades.
“Today’s decision is a landmark victory for rights of public-sector employees coast to coast that will free millions of teachers, police officers, firefighters and other public employees from mandatory union payments,” said Mark Mix, NRTW president.
Labor unions and other supports see the case more as a politically motivated assault against worker rights. They believe unions are critical to protecting workers and upholding their rights against abusive employers. They warn that optional dues could diminish the ability of unions to fulfill that goal because some workers might free-ride.
“The case aims to erode the freedom to form unions to improve our lives and the communities we serve,” AFSCME detailed on its website. “Real freedom is about making a decent living from our hard work; it’s also about having time to take a loved one to the doctor, attend a parent-teacher conference and retire in dignity. The corporate special interests behind this case do not believe that working people should have the freedom to negotiate a fair return on their work.”
The free-rider argument has been used by unions against both legal challenges and right-to-work laws. Labor unions are obligated to represent everyone in a workplace once they get voted in as the exclusive representative. That includes workers who don’t pay which might encourage some to stop since they’ll get the benefits anyway.
Mark Janus supporters have contested the workers are being forced to accept union representation, a characterization that the Court agreed with.
“He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage,” the court wrote, accepting that argument that some workers might not even want the benefits their workplace union is fighting for like seniority policies, but they are still legally obligated to fund those activities. Unions also do a lot of activism not directly associated with their members.
Labor unions could avoid the free-rider problem outright by organizing member-only groups. Member-only unions 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.
Labor unions have also put the case at the forefront of numerous protests that have been held over the last year. The Service Employees International Union has been encouraging members and supporters for months to protest nationwide when the decision gets held down.
The U.S. Supreme Court found that unions could require fees from nonmembers in its earlier decision from 1977. It also established the rule that labor unions must provide nonmembers the option of paying a nonpolitical fair-share fee. The latest decision effectively overturns those rules for public-sector workers.
Labor unions could potentially lose a lot now that mandatory union payments are outlawed in the public-sector. Bureau of Labor Statistics data shows that the union membership rate stands at 34.4 percent for public-sector workers, but only 6.5 percent for private. But the true impact will depend on how many workers leave and stay.
Democrats might also see a hit in their funding with how much of that support comes from unions. The Center for Union Facts (CUF) found in a report last year that labor unions have contributed nearly $765 million to the Democratic causes between 2012 and 2016. That amounts to about 99 percent of their total advocacy budget.
Justice Elena Kagan recognized the political impact of the decision in her dissent.
“The majority overthrows a decision entrenched in both this nation’s law and its economic life,” she wrote. “And it does so by weaponizing the 1st Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”
The CUF has been a long-time advocate for worker choice policies like right-to-work laws. It has also argued in support of a pending bill known as the Employee Rights Act. The bill primarily changes union elections and how dues payments can be taken.
Wisconsin Republican Gov. Scott Walker saw a significant decline in membership rates when he made dues optional for state workers in 2011. The union membership rate in the state dropped from 14.1 percent to just 9.0 percent by 2016. But federal employees already have that right and membership is still fairly high in the federal workforce.
The U.S. Supreme Court heard a nearly identical case back in 2016. California teacher Rebecca Friedrichs eventually lost that case with the court split after the death of Justice Antonin Scalia. Justice Neil Gorsuch was appointed to fill the empty seat and became the deciding vote in favor of the state workers against the union.