This year the labor movement begins a long-dreaded, yet long-overdue day of reckoning at the high court. After a brief reprieve with the death of archconservative Justice Antonin Scalia, the Supreme Court’s brand-new Trump-approved conservative majority will take up the case of Janus v. AFSCME, and perhaps decide how public-worker unions operate for generations to come.
The central question in Janus—concerning fees paid by workers represented by a public-sector union—isn’t new. The current system of compelling all workers covered by a union contract, even if they are not formal union members, to contribute a “fair share” fee to support the collective-bargaining process was decided only in the late 1970s with a case called Abood v. Detroit Board of Education. These so-called fair-share fees, along with union members’ dues, have historically been seen as a basic source of funding for managing the process of collective bargaining for the workforce, and all workers in a bargaining unit are expected to contribute toward maintaining the union’s basic function. The case challenges fair-share payments as tantamount to “political” messaging, rather than a mandatory maintenance fee, which labor advocates say would effectively undermine the financial core of many public-*sector unions and weaken their membership and bargaining power.
However, in the 40 years that have since passed, the steep decline of private-sector unions and the simultaneous emergence of the public sector as the most strongly unionized segment of the workforce have made the stakes for the case against agency fees that much higher. Unlike previous legal challenges, such as the Harris v. Quinn case involving Illinois home-care workers, the Janus case centers on the First Amendment. The central argument is that fees required of workers in a collective-bargaining unit amount to a form of compelled political “speech” to the government, which should be considered a violation of the worker’s First Amendment rights. School worker Mark Janus was not a union member, and objected to being obligated to contribute a fair-share fee, even though he benefited from the union’s contract anyway. The case turns on the assumption that, whether you’re a teacher seeking smaller classes or a retiree seeking decent health care, the Court will essentially treat your union’s contract demands as ideologically lobbying your government.
Unions see Janus (along with a similar case, Friedrichs v. California Teachers Association, that was narrowly avoided under Obama) as a “frontal assault” on labor based on the “right-to-work” concept, using a distorted interpretation of free speech to undermine the financial and institutional structure of public-sector unions. Unions have long argued that there is a clear legal line separating lobbying and activities related to managing the basic contract-negotiation process. The First Amendment case in Janus is just a fig leaf for a right-to-work agenda. In the private sector, right-to-work legislation, already enacted in nearly half of states for private-sector workers, effectively preempts “closed-shop” unionization by allowing workers to opt out of union membership and financial obligations of their own free will. The parallel attack on civil-service unions similarly threatens to destroy the legal foundation of public-worker collective bargaining under state law.