Employers Beware: Unions Down but Not Out with Supreme Court Decision in Janus vs. AFSCME
At last! Forced agency fees paid by federal employees were dealt a death blow by the U.S. Supreme Court with a recent decision.
In a decision announced the morning of June 27, 2018 in the case of Janus vs. AFSCME, the justices ruled 5-4 that state government workers cannot be forced to pay agency fees, aka fair share fees, whether or not they joined a union. This decision delivers a major financial blow to unions because a significant amount of union funds are used to back Democrat candidates who support unions. However, this is a cautionary tale for employers. Blue States and the unions have been expecting this decision so have been diligently working to find ways around it.
Serious First Amendment Concerns
Right now the unions are feeling the angst in full force. UnionProof reviewed the history of the U.S. Supreme Court case of Janus vs. AFSCME last October in a blog. In a nutshell, Mark Janus, a state employee who did not join the union, wanted to end the payment of agency fees to unions. He did not support the political candidates the union was supporting with dues in various ways that included spending on lobbying and election campaigns for candidates of their choice.
The Supreme Court opinion says this is a Constitutional issue, and that “Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns.” Employees should not be forced to support politicians and political actions they find objectionable because it violates free speech rights. Also, the Supreme Court noted that there are Federal employees and employees in 28 right-to-work states that do not allow agency fees to be collected. This negated the “free rider” arguments that non-union members get the advantages of collective bargaining, workplace safety and grievance procedures without paying their fair share.
The president of the American Federation of State, County, and Municipal Employees (AFSCME), Lee Saunders, naturally blamed this case on the evil corporations who used “…their power and influence to launch a political attack on working people and rig the rules of the economy in their own favor. The message is clear and simple: You don’t care about working people. You only care about profit.”
Developing Work Arounds to Beef Up Union Power
Despite a ruling against unions, it is critical that employers recognize the 23 states without right-to-work laws and the unions have been strategizing on ways to overcome a decision for Janus. The ruling allows approximately five million employees to decide whether they want to continue paying agency fees. For example, New York passed the NY A9509 (17R) provision that makes it more difficult for people to decide to not pay union dues by letting the unions determine the terms for refusing to pay dues. It also allows unions to recruit employees during the workday and to access employees’ contact information. New Jersey has a similar law – NJ S2137 (18R).
According to The Center for Responsive Politics, labor unions spent more than $217 million on political activity during the 2016 elections, with that money overwhelmingly going to Democratic candidates.
So it is understandable that Democratic states are trying to beef up union power to recruit dues paying members because public-employee unions contribute more than $100 million to Democratic candidates during election cycles. Though fair-share fees are already prohibited from being spent on political campaigns, it’s impossible to believe that prohibition is strictly adhered to.
The unions have also been busy preparing for a decisions against the unions. They have been contacting their members for months, educating them on the labor movement and explaining the importance of becoming more proactive. California’s Service Employees International Union’s state council has been developing plans for five years because an early state case foreshadowed the Janus vs. AFSCME case. In 2015, the unions first lobbied for a bill that allows public-sector unions to set up meetings with new hires to tout the benefits of union membership. It finally passed in 2017, and another law was also passed that imposed restrictions on government employers who want to discuss the pros and cons of union membership with employees.
Prepare for Mobilization of Union Members
The Policy Director of the Illinois Economic Policy Institute, Frank Manzo IV, made additional suggestions for potential union actions in response to the Janus vs. AFSCME case. They include increasing engagement of union members, filing new cases in court addressing free speech rights of union members, and increasing the number of short-lived labor strikes, like the teachers held in several states. You can also review the National Education Association’s “8 essentials to a strong union contract without fair-share fees” to get a good feel for what to expect from unions.
The Supreme Court decision has created an incentive for public employees to stop paying union dues, knowing they will still have to be represented by the unions. Though this is a public employee case, you can expect unions to step up their efforts to attract new members in private and government workplaces, and to negotiate stronger contracts to increase the amount of dues they collect.
As an employer, it’s important to take the lead in engaging all your employees in a transparent dialogue and to provide easily accessible training via custom video, web and eLearning options to share information about your company’s perspective on unions and the relevance of the Supreme Court decision. You can count on unions to cast the decision as an attack on working people to incite interest in unionization. Employees who are informed about the consequences of unionization are more likely to resist the more aggressive union tactics that are surely coming. It will take a while for the full impact of the Janus vs. AFSCME case to be felt, but now is the time to strengthen your union proofing strategies.