The Supreme Court delivered a major blow to public-sector unions Wednesday, ruling that they cannot force government workers to join or financially support them.
The 5-4 ruling in the case, called, Janus v. American Federation of State, County and Municipal Employees, by the court’s conservative wing overturned a four-decade-old precedent and affects about seven million people.
Union leaders expect the ruling to result in major membership losses and drained treasuries as workers, who previously had no choice, start opting out of being involved with unions.
Public-sector unions account for about half of the nation’s 14 million union members, so the blow is expected to ripple through the union movement as a whole. The case also raises the possibility that the court will extend the same logic to private-sector unions in a future case, compounding the impact.
Plaintiff Mark Janus said he was elated with the ruling. “I’m thrilled that the Supreme Court has restored not only my First Amendment rights, but the rights of millions of other government workers across the country. So many of us have been forced to pay for political speech and policy positions with which we disagree, just so we can keep our jobs. This is a victory for all of us. My right to say ‘no’ is at least as important as my right to say ‘yes,’” he said.
The case involved whether the union violated the First Amendment rights of Janus, an Illinois state government employee, by forcing him to pay a regular fee to his workplace’s union even though he declined to become a member. The state automatically deducted $50 from Janus’ paychecks and forwarded the money to AFSCME Council 31, costing him $600 annually. Janus sued, arguing he didn’t believe he benefited from the union’s efforts and shouldn’t be forced to subsidize an organization he didn’t agree with.
The seemingly minor financial dispute had profound implications for the entire union movement. Such fees, dubbed “security clauses,” are a common feature of labor-management contracts and a major source of revenue for public-sector unions.
The fees were first approved for public-sector unions in a 1977 Supreme Court case called Abood v. Detroit Board of Education. They are in theory meant to cover the costs of the union’s collective bargaining on behalf of all workplace employees. Unions argue that with them workers would become ‘free riders’ getting the benefit of unions without having to contribute.
But the current court struck down Abood.
“We recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations,” Justice Samuel Alito wrote in the majority opinion, which was joined by Chief Justice John Roberts and Justices Neil Gorsuch, Clarence Thomas and Anthony Kennedy.
In effect, the court said that all public-sector workers have right-to-work protections, which prohibit security clauses. A total of 28 states have such laws for private-sector unions.
The majority conceded that the central contention in Abood, that government entities had similar interests as private-sector employers in managing relations their workforce, including allowing employees to collectively bargain. But it argued that Abood went too far. “We simply draw the line at allowing the government to go further still and require all employees to support the union irrespective of whether they share its views.”
They acknowledged that the ruling would be extremely disruptive to unions, forcing them to experience “unpleasant transition costs” because they no longer can count on as much revenue from nonmember security fees. But they argued that the unions’ free rider argument got it backwards and that it was the unions that were free-riding on the workers.
“We must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment,” the majority said.
The court’s liberal wing decried the effect the ruling would have. “Today, the court succeeds in its six-year campaign to reverse Abood. … Its decision will have large-scale consequences. Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interest will need to find new ways of managing their work forces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways,” Justice Elena Kagan wrote in the minority opinion, which was joined by Justices Ruth Bader Ginsberg, Sonia Sotomayor and Stephen Breyer.
The ruling would likely cause even pro-union workers to cancel their payments, Kagan argued, because they would “begin to feel like suckers” if they continued paying.
AFSCME President Lee Saunders called the case an “unprecedented and nefarious political attack” and said despite the ruling, “We are more resolved than ever to fight like hell to win for our members and the communities they care so much about.”
Nonunion liberal groups expressed alarm over the ruling’s potential impact on the broader liberal movement by weakening one of its core groups. The environmentalist Sierra Club said the ruling “does the bidding” of polluting corporations even if the case specifically involved public-sector workers.
Quite a few public-sector workers don’t want to be involved with unions, according to the movement’s own research. A study by the labor-backed Illinois Economic Policy Institute released in April predicted that public-sector unions would lose 726,000 people or about 8 percent of their total membership, should the justices overturn Abood.
An internal survey by AFSCME, which has 1.6 million members, found that only a third of them would voluntarily pay dues, and half of its membership couldn’t be counted upon to do that, according to a 2015 Bloomberg report. Fifteen percent would be certain to opt out of paying dues entirely.
The court split 4-4 on a similar case last year called Friedrichs v. California Teachers Association following Justice Antonin Scalia’s death, leaving the Abood precedent intact. It was widely assumed the decision of Janus hinged on where the newest justice, Trump pick Neil Gorsuch, stood on the issue.
Gorsuch had scant history on workplace law issues and confounded court-watchers during February’s oral arguments in the case by asking no questions at all.
The White House filed an amicus brief in the case siding with Janus.
The National Right to Work Legal Defense Foundation and the Liberty Justice Center, both of which have long defended workers who oppose their unions, represented Janus in the case.
