WASHINGTON—In a 5-4 decision almost as predictable as the sun coming up this morning, the Supreme Court ruled that public-sector employees can’t be required to pay any fees to the unions that represent them.
The case overturned the Court’s 1977 ruling in Abood v. Detroit Board of Education, which held that workers could not be forced to pay for unions’ explicitly political activities, such as campaign contributions, but had to pay for the costs of collective bargaining and representation in grievance procedures. The resulting “fair-share fees” or “agency fees” were typically about 80% of full dues.
“Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities,” Justice Samuel Alito wrote for the majority in Janus v. AFSCME Council 31. “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.”
“It is shameful that the billionaire CEOs and corporate special interests behind this case have succeeded in manipulating the highest court in the land to do their bidding,” the nation’s four largest public-sector unions—AFSCME, the Service Employees International Union, the National Education Association, and the American Federation of Teachers—responded in a joint statement. “This case was nothing more than a blatant political attack to further rig our economy and democracy against everyday Americans in favor of the wealthy and powerful.”
This case was nothing more than a blatant political attack to further rig our economy and democracy against everyday Americans in favor of the wealthy and powerful — AFSCME, SEIU, NEA, AFT.
The case, filed by Illinois state employee Mark Janus with the backing of several anti-union organizations, turned on the argument that all activity by public-sector unions is political. When Illinois “offered cost-saving proposals” during bargaining, Justice Alito wrote, AFSCME Council 31 countered by advocating “wage and tax increases,” “cutting spending ‘to Wall Street financial institutions,’” and “closing ‘corporate tax loopholes.’”
Illinois Gov. Bruce Rauner, who filed an early version of the case in 2015 as part of his effort to cut state workers’ pensions, called the decision a “great victory for state employees and Illinois taxpayers” on Twitter.
The Court also ruled that union fees could no longer be deducted from nonmembers’ paychecks “unless employees clearly and affirmatively consent before any money is taken from them.” Alito argued that it is next to impossible to calculate which expenses are “chargeable” as political activities and which are not.
Justice Elena Kagan, dissenting, argued that the Abood precedent set the right balance, ensuring that unions required to represent all workers received “adequate funding” while allowing employees to abstain from the union’s political activity. An “agency-fee provision prevents employees from reaping all the ‘benefits of union representation’—higher pay, a better retirement plan, and so forth—while leaving it to others to bear the costs,” she wrote.
Alito dismissed concerns about “free riders,” saying that representing nonpaying employees in grievance procedures isn’t a burden on unions because the results benefit all members.
“There is no sugarcoating today’s opinion,” Justice Kagan wrote. “The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”
The decision was easily predictable. Two years ago, the Supreme Court deadlocked 4-4 on virtually identical arguments in Friedrichs v. California Teachers Association, after Justice Antonin Scalia’s death eliminated the fifth vote to overturn Abood. Scalia’s replacement, Neil Gorsuch, was a clear antilabor vote: In a 2016 appeals-court dissent, he argued that a truck driver was justifiably fired after he detached his cab from a disabled trailer and drove off rather than freeze to death.
The decision may also open the door to future litigation chipping away at union rights, such as exclusive representation. “Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees,” Alito wrote. “Among other things, this designation means that individual employees may not be represented by any agent other than the designated union; nor may individual employees negotiate directly with their employer.”
While this is legally “dicta,” comments that are not a binding part of the decision, it is the same tactic Alito used in his opinion in the 2014 Harris v. Quinn case, a 5-4 decision that exempted Medicaid-paid home health-care workers from agency fees as “partial public employees.” In his dicta, he called the Abood precedent “questionable on several grounds,” arguing that bargaining to increase public workers’ pensions, for example, was inherently political activity.
The decision “rigs the system like never before against working-class families and sets America up for an explosion of the most economic inequality since the Gilded Age,” responded UNITE HERE, whose 60,000-member Local 226 Culinary Union in Las Vegas is the largest union in a state that prohibits the union shop.
“This decision robs power from working families to put it in the hands of corporate elites,” UNITE HERE International President D. Taylor said. “Let us allow it to serve as a catalyst to the labor movement for bolder, stronger worker organizing. This ruling is designed to break American workers by putting unfair burdens on us that the corporate elites think we cannot beat—but together we can let it embolden us to organize to greater heights than we have ever before and deliver the tangible victories that transform workers’ lives.”