There is great angst among unions over the Supreme Court case of Janus v. AFSCME (American Federation of State, County, and Municipal Employees, Council 31) to be decided in 2018. Case 16-466 addresses whether unions representing public employees can force non-union employees to pay compulsory “agency fees.” The agency fees ostensibly go into the union fund to cover only the cost of union representation for union and non-union employees. Briefly, Janus says the dues are used for political activities that he doesn’t support. However the case is decided, there will be consequences for unions and employers.
Forced Union Dues & The Supreme Court
Mark Janus works for the Department of Healthcare Services as a child support specialist and objects to being forced to pay agency fees to AFSCME to keep his job. Agency fees are fees that employees are forced to pay to unions, even though they didn’t join the union. This practice was made legal in the Supreme Court case of Abood v. Detroit Board of Education, decided May 23, 1977. In the Abood case, it was decided that a Michigan statute authorizing unions to represent all public employees — union and non-union — was legal. The Supreme Court also ruled that workers could be compelled to pay agency fees (equivalent union dues) to support union collective bargaining efforts but couldn’t be forced to pay for union political activities.
In an agency shop, every employee represented by a union must pay a service charge to the union that is equal to union dues, whether or not the employer is a union member. Janus particularly objects to being forced to pay agency fees to a union supporting political candidates that he doesn’t personally support. He claims the First Amendment guarantees him freedom of speech and association and doesn’t want to pay dues to a union that doesn’t represent his interests.
The issues involved have been working their way through lower courts for years. On March 23, 2015, the Right to Work (RTW) Legal Defense Foundation was allowed to represent Mark Janus and two more Illinois state employees, all three paying agency fees. The Foundation requested an injunction against the unions, with damages added (case 75-1153). On March 29, 2016, the Supreme Court case vote in the Friedrichs v. California Teachers Association case, again challenging forced union dues, was a 4-4 deadlock due to the death of the conservative Justice Antonin Scalia.
A deadlock in the Friedrichs case left the legality of forced union dues deductions, initially authorized in the Abood case, in place. In October 2016, the Foundation and the Liberty Justice Center filed an appeal to the Seventh Court of Appeals, claiming the Abood case shouldn’t set a precedent for the Janus case. After the Seventh Circuit said the Abood decision did apply to the Janus case, the Foundation asked the U.S. Supreme Court to hear the Janus case, which it agreed to do.
What Do Forced Union Dues Fund?
Compulsory “agency fees” deducted from non-union employee paychecks are supposed to cover a variety of costs, including the cost of negotiating collective bargaining agreements and to fund union advocacy on a number of issues. The union says it needs the funds to advocate on issues like right-to-work statutes, minimum wage, immigration reform, government contracting, tax policy, and gun control. AFSCME contributes to the Democratic Party and works to elect people at all levels of the government, thus a political element is introduced.
The appointment of Neil Gorsuch as a Supreme Court justice means Janus is likely to get a favorable decision. However the decision goes, there will be major impacts on employers and employees. If the AFSCME wins, unions can continue to use employee dues to wield enormous political power and continue forcing workers to pay agency fees. Currently, over five million employees are currently paying agency fees in more than 20 states.
If the Supreme Court rules in favor of Janus, open shops are here to stay. Public employees will no longer be forced to pay union dues, but union negotiations will still have to include non-union employees. It’s easy to predict that union membership numbers will significantly decline, along with union influence.
Avoid Unionization Altogether
Unions are very worried. Employers need to be prepared to respond to employee inquiries concerning this case without violating the NLRA. Union arguments against overturning Abood are far-ranging. In addition to claiming it’s unfair to be forced to represent people who aren’t paying any fees, they are calling this case blatantly political, unjust and harmful to the poor, since unions won’t be able to lobby for worker rights and fair wages. Unions say the intent of the Foundation’s Legal Defense Fund is to support corporate interests and politicians who want to reduce union influence.
The AFL-CIO and other unions have started a campaign against Janus, and understanding their arguments for a ruling in favor of AFSCME is important to developing appropriate responses to your employee inquiries. As an employer, you need to union-proof your organization now to discourage employees from turning to unions in sympathetic support of unionized public employees.