Supreme Court spikes union fees in Janus ruling
Illinois Education Association calls the case 'an assault on public unions'
By Ted Cox
The U.S. Supreme Court dealt a blow to union membership Wednesday by ruling that public workers are not required to pay so-called fair-share fees in union shops.
The suit Janus v. AFSCME Council 31 was based in Illinois and was actually first filed by Gov. Bruce Rauner soon after his inauguration in 2015. Courts eventually ruled he had no standing to file the suit, as he was not a union member, but it continued under a proxy, Mark Janus, a child-support specialist in the Department of Healthcare and Family Services in Springfield.
Rauner cast the suit as an attempt to limit the power of unions on state politics by charging that union members and Democrats were aligned. In fact, his case was framed as a free-speech issue, with Janus charging that his First Amendment rights were impinged by having to pay fees to unions that then spoke for him in a way not to his liking. Janus is not a member of the American Federation of State, County and Municipal Employees local, but nonetheless pays mandatory "fair share" fees. Those fees do not go to political campaigns, but conservative critics have argued they position unions to spend other funds in the political arena.
The Supreme Court ruling overturns a 40-year precedent the court set in 1977 allowing public worker unions to collect "fair share" or "agency" fees to fund union efforts on negotiations, grievances, and the like. The majority 5-4 opinion written by Associate Justice Samuel Alito concluded the 1977 case, known as Abood, "was wrongly decided and is now overruled."
Associate Justice Elena Kagan issued a withering dissent, joined by Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer. "Rarely if ever has the Court overruled a decision — let alone one of this import — with so little regard for the usual principles," Kagan wrote, adding, "There are no special justifications for reversing" the Abood precedent.
"There is no sugarcoating today’s opinion," Kagan added. "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."
"There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this nation’s law ... for over 40 years."
Associate Justice Elena Kagan (Flickr/Doc Searls)
The ramifications of the ruling reach far beyond Illinois's borders. A recent study by the Illinois Economic Policy Institute said it would affect 5 million public employees nationwide, reducing salaries by an average of 3.6 percent with a $33 billion impact on the U.S. economy. The study reached that figure by comparing states with fair-share union laws to those with so-called right-to-work laws forbidding mandatory union membership.
Teachers especially consider it an attack on their unions, already embattled in their bid for fair pay and for adequate funding for education. The Illinois Education Association put out a video saying, "Public education is under attack" and calling the Janus case "an assault on public unions, a move meant to cripple labor unions, and an attempt to steal the voices of students, teachers, and education support staff nationwide." It blamed the suit not just on Rauner, but on "big money" conservative fundraisers and groups like Richard Uihlein and the Illinois Policy Institute.
The IEA issued a statement after Wednesday's decision charging that the suit was "bankrolled by corporate interest groups that wanted to rig the economic system further in their favor and make it even harder for working people to stand united."
"We are disappointed, but not surprised, by today’s Supreme Court decision that does not allow unions like ours to collect fees from non-members who benefit from the union’s work," said IEA President Kathi Griffin. “Let’s be clear, the goal of the people who supported this legal case, including Gov. Rauner, is to trying to silence IEA, (the National Education Association), local associations and other public employee unions. They want to stop us from using our collective voice to advocate for our students, for ourselves and for public education.
“They will fail."
According to Griffin, "It has never been more vital that those of us who believe in fair contracts use our collective voice to make sure that all students have access to a high-quality public education. We will continue to spread the truth about the importance of union membership to all of our brothers and sisters working in schools.
“This fight is just beginning," she added. "We won’t let them stop us. We will use their attacks to build a stronger IEA and we will move forward together because we know we are stronger united."
Teachers already paying hundreds and up to $1,000 out of pocket every school year for needed supplies might be prone to the argument that they drop out of a union and spend those fees elsewhere, a factor Rauner intends to exploit.
The Supreme Court's decision Wednesday gives conservative politicians leverage in those arguments. Rauner himself was in Washington, D.C., for Wednesday's court decision, and announced plans to create a state website to instruct public workers how to opt out of union membership.
AFSCME Council 31, however, immediately turned it into a cause to actually build union membership. In a statement, the union local called it a ruling "against working people and in favor of billionaire CEOs and corporate interests."
"This case is a blatant political attack by Bruce Rauner and other wealthy interests on the freedom of working people to form strong unions,” said Council 31 Executive Director Roberta Lynch. “We are extremely disappointed the Supreme Court has taken the side of the powerful few, but we’re more determined than ever to keep our union strong, standing up for public services and the working people who provide them.
"The powerful interests behind this case have tens of millions of dollars to pour into their political agenda of trying to silence us. But we aren’t afraid and we aren’t going anywhere,” she added. “We’re making certain that every union member knows the real intent of this case is to defund unions, then drive down wages and benefits of public service workers. We're not going to let that happen."
"We know it’s through our union that we have the ability to stand up together for the fair pay and decent benefits that all working people deserve,” said Kristen Nolen, a public health worker in Springfield. “We’ll never quit, because we know that our state and our country need strong unions and working people need a strong voice."
The Service Employees International Union also used the decision immediately in a recruitment drive, saying, "Today, the Supreme Court came down on the wrong side of history in the Janus v. AFSCME case. Let's make this the last roadblock powerful billionaires put in the way of working people and their families!"
U.S. Sen Tammy Duckworth issued a statement saying she was "disappointed that the court sided with the anti-union activists and well-funded corporations who want to chip away at workers' rights, but I will continue to stand up to those who want to lower wages, roll back workplace protections and restrict entry into America's middle class."
In Washington, Rauner cheered the ruling on the courthouse steps.
"I am proud of what we started three years ago on behalf of state employees and taxpayers,” he said. “We are grateful to Mark Janus and the Liberty Justice Center for joining with me to bring this important issue to its rightful conclusion."
Wednesday's ruling might also provoke labor unrest, according to University of Illinois at Urbana-Champaign Professor Robert Bruno, co-author of the recent ILEPI study. In a Chicago Tribune op-ed column printed last month, Bruno pointed out that the recent spate of teacher strikes and marches on state capitols all took place in states without collective-bargaining laws for public employees.
Illinois is one of 22 states with laws on fair-share fees, but the court's ruling undermines that to basically make "right-to-work," without having to join a union or pay its fees, the law of the land, at least for public workers.
The ruling is also likely to prompt political unrest. The high court is already under fire for a perceived conservative shift under newly confirmed Associate Justice Neil Gorsuch. Appointed by President Trump after U.S. Senate Republicans successfully blocked the confirmation of Obama appointee Merrick Garland following the death of Justice Antonin Scalia in 2016, Gorsuch created an immediate stir on the bench with an active manner in oral arguments, but he was suspiciously quiet during oral arguments on Janus in February.
Gorsuch joined the majority in Janus, as he did in the court's ruling affirming Trump's travel ban on Tuesday.