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The Supreme Court’s June 27 ruling nullifying public-employee unions’ right to collect agency-fee payments from nonmembers, coming a day after it upheld President Trump’s travel ban, served as a reminder that the designs of Republican Party leaders and their biggest donors on gutting the rights of working people and organized labor were set in motion long before he took office.
The majority opinion in the 5-4 decision, written by Justice Samuel Alito, used questionable logic to refute a ruling on the subject by the 1977 edition of the Supremes. He claimed a vital First Amendment right was at stake—a principle that coincidentally played a role in the travel-ban ruling, which essentially argued that Mr. Trump’s campaign-trail rants in 2016 should not be taken as evidence of his personal prejudices having spurred the ban.
A compelling dissent on the agency-fee issue was provided by Justice Elena Kagan, with concurrences from Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, even with her resorting to a footnote to contest Justice Alito’s flawed comparison between the unions affected by the decision and those that represent Federal employees. But it didn’t matter: the right wing of the court had the votes, and the announcement shortly afterwards that Anthony Kennedy would be retiring at the end of July and taking his swing vote with him merely rubbed salt in labor’s wound.
Case’s Top-Down Origin
The case, Janus v. AFSCME, originated with a lawsuit brought by Illinois Gov. Bruce Rauner shortly after he took office in 2015 challenging his state’s agency-fee law as unconstitutional. Mark Janus, a member of Council 31 of the American Federation of State, County and Municipal Employees, sought intervener status in the suit, which came in handy for the right-wing interests bankrolling the challenge when a court ruled, based on a motion by the state’s Attorney General defending the agency-fee statute, that the Governor lacked the standing to sue over the law.
Given Mr. Rauner’s ideological positions, it would have to be presumed that every dollar not spent on a pay raise for Mr. Janus and his co-workers would be put to better civic use through tax cuts for wealthier members of Illinois’s donor class. At the risk of stereotyping by profession, child-support specialists are not known for believing themselves to be overpaid, or wealthy citizens to be unfairly put upon to subsidize the public workforce. And so a reasonable man—that key component of the legal system—might conclude that if Mr. Janus was not simply a blockhead, he, too, had an ideological ax he wanted to bury in labor’s hide.
Justice Alito stated in his ruling, “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.” And so it didn’t matter if Mr. Janus’s stance went against the grain for those in his position: the Justice wrote, “Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free-speech cases said that a law commanding ‘involuntary affirmation’ of objected-to beliefs would require ‘even more immediate and urgent grounds’ than a law demanding silence.”
He continued, “Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns.” Citing another recent Supreme Court decision on a related issue, Justice Alito stated, “We have therefore recognized that a ‘significant impingement on First Amendment rights’ occurs when public employees are required to provide financial support for a union that ‘takes many positions during collective bargaining that have powerful political and civic consequences.”
Justice Kagan took a very different view in her dissent while noting that the majority ruling, which she described as the culmination of a “6-year campaign to reverse” the 1977 high-court ruling known as Abood, would have “large-scale consequences.”
A Balancing of Interests
In the Abood case, which involved Teachers in Detroit and the agency-fee requirement there, it was found that the employer and the affected union had agreed on that statute as a way to “distribute fairly the cost [of collective bargaining] among those who benefit… In other words, 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.”
At the same time, Justice Kagan noted, the 1977 Supremes understood why some employees might object to “political and ideological” positions their union might take and not want to subsidize such activities.
“So the Court struck a balance,” she wrote, under which nonmembers were required to pay a portion of dues “to support the union in ‘collective bargaining, contract administration and grievance adjustment.’” At the same time, she continued, “Outside the collective-bargaining sphere, the Court determined, an employee’s First Amendment rights defeated any conflicting government interest.”
Justice Alito questioned the logic of the predecessor court’s solution, focusing on its view that the agency-fee arrangement helped promote “labor peace” through the designation of a single union as the bargaining agent for a group of employees. He contended that “Abood cited no evidence that the pandemonium it imagined would result if agency fees were not allowed, and it is now clear that Abood’s fears were unfounded.”
The basis for his conclusion was that no such chaos existed within the Federal workforce, where just 27 percent of employees belong to unions and no agency fees are required. Similar conditions prevail at the U.S. Postal Service, Justice Alito continued, where workers are permitted to choose an exclusive representative and “about 400,000 are union members. Likewise, millions of public employees in the 28 States that have laws generally prohibiting agency fees are represented by unions that serve as the exclusive representatives of all the employees. Whatever may have been the case 41 years ago when Abood was handed down, it is now undeniable that ‘labor peace’ can readily be achieved ‘through means significantly less restrictive of associational freedoms’ than the assessment of agency fees.”
Some Facts Left Out
This argument left out a few salient facts. One is that Federal workers are not entitled to collective bargaining on wages, with their unions limited to negotiating on working conditions. That eliminates the need for expertise when it comes to compensation for similar jobs in other jurisdictions, as well as the kind of poker-playing skills that good labor negotiators possess when it comes to pushing or modifying wage demands or saying yes to a management offer as the best they are likely to get. It also makes it unnecessary to have technical advisers with actuarial skills for making calculations on fringe-benefit items such as longevity pay. Take that kind of specialized knowledge out of the equation because you’re not allowed to negotiate on such matters, and the costs of collective bargaining drop precipitously. In such a situation, the need for agency fees to help cover such expenses obviously diminishes as well.
Justice Alito also questioned the mention in the Abood decision of concern about “the risk of ‘free riders' ” to justify agency fees. He noted that Mr. Janus “strenuously objects to this free-rider label. 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.” No doubt he would have argued, had he felt it necessary, that Mr. Janus felt violated by the appearance of extra money in his paycheck each time Council 31 negotiated a raise.
And, Justice Alito continued, if advocating for additional benefits entitled unions to automatically be compensated by those who received them, where would the lines end of various pleaders staking their claim to some reward?
“Many private groups speak out with the objective of obtaining government action that will have the effect of benefiting nonmembers,” he continued. “May all those who are thought to benefit from such efforts be compelled to subsidize this speech?
“Suppose that a particular group lobbies or speaks out on behalf of what it thinks are the needs of senior citizens or veterans or physicians, to take just a few examples. Could the government require that all seniors, veterans or doctors pay for that service even if they object?… In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.”
One Crucial Difference
Justice Kagan parried that argument by writing, “But that disregards the defining characteristic of this free-rider argument—that unions, unlike those many other private groups, must serve members and non-members alike. Groups advocating for ‘senior citizens or veterans’ (to use the majority’s examples) have no legal duty to provide benefits to all those individuals: They can spur people to pay dues by conferring all kinds of special advantages to their dues-paying members. Unions are—by law—in a different position, as this Court has long recognized.”
Hitting the majority in a soft spot, she noted that its longtime spiritual leader, Justice Scalia, had made precisely this point in another case, Lehnert v. Ferris Faculty Assn., writing that the “law requires the union to carry [non-members]—indeed, requires the union to go out of its way to benefit [them], even at the expense of other interests.”
Justice Alito contended that even without agency-fee rights, there were unions clamoring to be exclusive bargaining agents because of the power it gave them. “In addition, a union designated as exclusive representative is often granted special privileges, such as obtaining information about employees… and having dues and fees deducted directly from employee wages… These benefits greatly outweigh any extra burden imposed by the duty of providing fair representation for nonmembers.”
Those arguments, Justice Kagan countered, avoid “the key question, which is whether unions without agency fees will be able to (not whether they will want to) carry on as an effective exclusive representative. And as to that question, the majority again fails to reckon with how economically rational actors behave—in public as well as private workplaces. Without a fair-share agreement, the class of union non-members spirals upward. Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers) so they too quit the union… And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative—or, in the worst case, to perform them at all. The result is to frustrate the interests of every government entity that thinks a strong exclusive-representation scheme will promote stable labor relations.”
A ‘Unions-Only’ Standard?
She also questioned the majority’s willingness to nullify the agency-fee right as a matter of free speech, writing, “Either the majority is exposing government entities across the country to increased First Amendment litigation and liability—and thus preventing them from regulating their workforces as private employers could. Or else, when actual cases of this kind come around, we will discover that today’s majority has crafted a ‘unions only’ carve-out to our employee-speech law.”
Justice Kagan noted the oft-stated high-court credo that departure from settled precedents requires “special justification—over and above the belief that the precedent was wrongly decided.” In this case, she continued, “the majority does not have anything close” to meeting that standard. And, she added, the precedent at issue stood out: “Over four decades, this Court has cited Abood favorably many times, and has affirmed and applied its central distinction between the costs of collective bargaining (which the government can charge to all employees) and those of political activities (which it cannot).”
Toward the end of her 28-page dissent, Justice Kagan accused the conservative majority on the court of the kind of judicial activism of which past courts with more-liberal leanings were often accused—a charge which President Trump and other Republican officials continue to make any time a lower-court decision goes against them. Her argument, however, had meat on the bone.
She noted that 28 states had right-to-work laws, while 22 had agency-fee laws. “The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years,” Justice Kagan wrote. “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 majority has overruled Abood for no exceptional or special reason, but because it never liked the decision… it wanted to pick the winning side in what should be—and until now, has been—an energetic policy debate. Some state and local governments (and the constituents they serve) think that stable unions promote healthy labor relations and thereby improve the provision of services to the public. Other state and local governments (and their constituents) think, to the contrary, that strong unions impose excessive costs and impair those services. Americans have debated the pros and cons for many decades—in large part, by deciding whether to use fair-share arrangements… Today, that healthy—that democratic—debate ends. The majority has adjudged who shall prevail.”
‘Meant for Better Things’
She concluded, “The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.”
In defeat, Justice Kagan, and the three colleagues who joined her dissent, marshaled the better arguments. The majority corralled the votes. That’s become a common occurrence since Senate Majority Leader Mitch McConnell stonewalled President Barack Obama’s nomination of Merrick Garland to succeed Justice Scalia, and enough people ignored that legislative assault on the democratic process to allow Mr. Trump to defeat Hillary Clinton in the Electoral College. Justice Scalia’s seat stayed open so that the new President could choose someone far more ideological as his replacement than Justice Garland figured to be.
With Justice Kennedy leaving, unless there is a Mueller-induced shift in the balance of power before the mid-term elections, the likelihood is strong that a more-dogmatic conservative will be installed as his successor this fall, tilting the court a few degrees further to the right.
Union leaders spoke determinedly in the face of the Janus decision about having begun to better engage their members, promote greater participation by the rank and file, and gain reaffirmations of those members’ commitment to the importance of strong unions. District Council 37 Executive Director Henry Garrido said an effort he began a half-dozen years ago, before ascending to his current position, had reduced the number of agency-fee payers to fewer than 7,000 from a high of 28,000. He said 82 percent of those who were already members have recently signed new cards to symbolize their commitment to the union.
Those are healthy developments, said Vinny Montalbano, a former political action director for DC 37 during the 1980s, and a necessary corrective. Talking about the impact Janus will have in the city, he said, “I think it will not be as bad as it’s likely to be in other parts of the country, but I do think the loss is likely to be greater than the unions anticipate” in terms of members joining nonmembers in opting out of paying dues. “The consequences of years of taking for granted that they could take agency fees” are presenting themselves, he said.
‘Got to Keep Organizing’
To have the kind of commitment public-employee unions will need from their rank and files now that there is no compulsory system producing dues in some form, “You’ve got to be in with the members, organizing constantly, and that has not been the case” until recently, Mr. Montalbano said. “Now you’ve gotta sustain it, and sustaining it over a long period of time can be difficult.”
There was the rebuttal to Justice Alito’s argument that union members not governed by agency fees were doing just fine that was spelled out by Harry Nespoli, the chairman of the Municipal Labor Committee: the average employee in a right-to-work state earns $6,100 less than one in a “union-friendly state.”
The unanswered question is whether public employees understand that this calculus has pivoted on the kind of right that their unions just had taken away from them, and that those organizations’ ability to maintain that kind of compensation advantage depends on people they represent realizing that it’s in their self-interest to keep faith with their unions.
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