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Washington — Labor unions vow to push back after an unfavorable U.S. Supreme Court ruling barring mandatory union fees for government employees, and the nomination of a conservative judge to the nation's highest court.  

The developments came as more states look to pass so-called "right-to-work" laws, which prohibit unions from requiring payment of dues as a condition of employment. Nationwide, union membership appears to have stagnated despite a slight uptick in Michigan.  

Ron Bieber, president of the Michigan AFL-CIO, said the June 27 Supreme Court ruling that struck down a 40-year-old precedent about so-called "agency fees" — which refers to the collection of money from employees to pay for the union's representation of all workers in contract negotiations — was "incredibly unfair.

"That is a court that is working for corporate America, not working people," Bieber said. "It's incredibly unfair. It's not dissimilar to right-to-work."

Bieber said he is not worried about its impact: "It doesn't affect us any differently in Michigan than right-to-work did." 

He also struck a defiant tone about the impact of President Donald Trump's nomination of Brett Kavanaugh to High Court to replace retiring Associate Justice Anthony Kennedy, who also was no favorite of  organized labor. Kavanaugh's prior rulings suggest he likely would be a pro-business justice

"Bring it on," Bieber said of the predicted shift right of the court with Trump's second Supreme Court appointment. "In Michigan, we've withstood setbacks pretty good. After (Gov. Rick) Snyder signed right-to-work, a lot of people predicted the end of the union movement. We increased membership (in Michigan) by 52,000 in 2017." 

Michigan’s right-to-work law, which took effect in March 2013, prohibits union contracts from requiring “fair share” fees as a condition of employment to pay for the cost of collective bargaining agreements.

The law was challenged in court, but the Michigan Supreme Court ruled in July 2015 that about 35,000 state employees should have never been subject to paying union fees, giving conservative supporters a major victory.

Despite the Michigan ruling, union membership in the state has grown. The number of union members in Michigan increased from 606,000 in 2016 to 658,000 last year, going from 14.4 to 15.6 percent of the workforce. Nationwide, workers who were members of unions remained steady at 10.7 percent. The labor bureau said there were 14.8 million union members in the U.S. in 2017, an increase of 262,000 from 2016.

Kavanaugh's record

The union case heard by the U.S. Supreme Court involved a child-support specialist for the state of Illinois named Mark Janus who challenged a requirement forcing him to pay fees to the American Federation of State, County and Municipal Employees to cover the cost of union representation.

The United Auto Workers, the largest labor union in Michigan, has decried the Janus ruling as "yet another effort to put obstacles in front of working men and women to join collectively behind the power of a unified voice.

"To be clear, labor will survive. But to be equally clear, our elections do matter, as the appointment of conservative Justice Neil Gorsuch by the Republican-led Senate left little doubt about the outcome of this decision," UAW President Gary Jones said in a statement. 

It remains to be seen how Kavanaugh might rule in labor cases if confirmed to sit on the Supreme Court.. But as a member of the United States Court of Appeals for the District of Columbia Circuit, he has been seen as sympathetic to corporations. Unions have noted he ruled against them in high-profile cases, including a 2016 case involving the right of employers in arbitration agreements to require that workers waive their rights to picket.

Kavanaugh was on a list of potential Supreme Court picks that was developed with the help of the conservative Federalist Society, which has supported anti-labor rulings like the Janus case, during Trump's 2016 campaign. 

National unions have mobilized to try to stop Kavanaugh's confirmation, sounding the alarm about tilting the High Court further toward a pro-business disposition. With Republicans controlling the U.S. Senate, they face long odds,

National AFL-CIO President Richard Trumka said in a statement: "Judge Kavanaugh routinely rules against working families, regularly rejects employees’ right to receive employer-provided health care, too often sides with employers in denying employees relief from discrimination in the workplace and promotes overturning well-established U.S. Supreme Court precedent.

"The current Supreme Court has shown that it will side with greedy corporations over working people whenever given the chance, and this nominee will only skew that further," he continued.

The Communications Workers of America union added: "Working people can’t afford to have Judge Kavanaugh making decisions that without doubt will adversely affect our families and our communities."

'Pretty big blow'

Arthur Wheaton, an automotive industry specialist at Cornell University’s Industrial and Labor Relations School, said the Supreme Court's Janus ruling might embolden other states to pass right-to-work or other anti-union laws. 

"They're going to try to promote more right-to-work laws, and possibly go for the entire country to become right-to-work," he said, noting that 28 U.S. states have such laws.

Wheaton said public-sector labor unions were able to brace for the Janus ruling because the court has been leaning toward the right in cases involving businesses and labor groups. He acknowledged the ruling will hurt public sector unions. 

"It's a pretty big blow, especially for public sector unions, where they have a free-rider problem now," Wheaton said of the Janus ruling. "The good news is it was not a surprise. They thought it was going to happen previously. Before (Associate Justice Antonin) Scalia died, there was a similar case." 

Anti-labor forces have been working to overturn agency fees "for almost 40 or 50 years," Wheaton said. "They just now have a Supreme Court that is willing to act in their favor." 

Vincent Vernuccio, director of labor policy at the Mackinac Center for Public Policy, said future legal challenges to union practices are likely after the Janus decision. Laws in states like New York, New Jersey and California that require state workers to pay agency fees will likely be fertile ground, he added, for legal challenges now that the Janus precedent has been set. 

"A New York lawmaker has floated the idea of having the state pay unions directly," he said. "That thing is going to be ripe for a challenge if it passes." 

Vernuccio said the Supreme Court's ruling in the Janus case should not be read as being anti-union. 

"There's a big difference between unions and forced unionism," he said. "The court was clear that they don't think public employees should be forced into paying to support the political agenda of unions. That is a far cry from the court coming out against unions themselves." 

Wheaton, the Cornell labor expert, said there will be limits into how far anti-union groups can go in challenging private-sector unions because they are covered under the National Labor Relations Act.

"The NLRA doesn't apply to public-sector unions, so it's easier for them to change," he said. "Trying to change private-sector unions is like trying to change health care in Congress. Everybody has an opinion, but they can't come to an agreement." 

klaing@detroitnews.com

(202) 662-8735

Twitter: @Keith_Laing

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