High court strikes down mandatory union fees

Melissa Nann Burke
The Detroit News
Illinois state employee Mark Janus argued that forcing him to subsidize union positions he disagrees with violates his First Amendment rights.

Washington — The U.S. Supreme Court on Wednesday said the mandatory fees that some government employees must pay to their unions for negotiating their contracts are an unconstitutional violation of free speech.  

The 5-4 ruling, written by Justice Samuel Alito, said such fees violate the First Amendment rights of non-union members "by compelling them to subsidize private speech on matters of substantial public concern."

The decision threatens a potentially significant blow to the power and size of public-employee unions, which rely in part on revenue from such fees. 

The ruling turns public-sector unions into essentially voluntary organizations in states without right-to-work provisions, as some workers choose to quit paying.

The majority opinion held that employees must affirmatively consent before fees can be withheld from their pay. That is, employees must opt in, rather than opt out of paying.

The decision overrules a 40-year-old precedent in a case out of Michigan known as Abood v. Detroit Board of Education, which unanimously upheld mandatory public-sector union fees, also called agency fees, in 1977.

The Abood court held that government had an interest in promoting "labor peace" and preventing free-riders. 

But Alito wrote that Abood was "poorly reasoned" and led to "practical problems and abuse."

"It is inconsistent with other First Amendment cases and has been undermined by more recent decisions," he wrote. 

In a dissent, Justice Elena Kagan said the decision will have "large-scale consequences."

"Public employee unions will lose a secure source of financial support," Kagan wrote.

"State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces."

Stephen Roberts, with the American Federation of State, County and Municipal Employees (AFSCME), holds up a sign against Mark Janus during a rally outside of the Supreme Court, Monday, Feb. 26, 2018, in Washington.

Detroit native Mary Kay Henry, president of the 2 million-member Service Employees International Union, described the ruling as the latest in a decades-long attack on unions by corporate interests.

"We’re not going to let the extremists behind this case divide us," Henry said on a call with reporters. "Today’s ruling only makes SEIU members even more determined to stick together."

United Automobile Workers President Gary Jones called the decision "just another barrier and another attack on working men and women."

"It cannot, however, take away the powerful voice that UAW members and other unions deliver when they sit across the table and collectively bargain for their families, their safety and their communities," Jones said in a statement.

In accordance with Abood, Illinois state law authorized unions to collect fees from non-members for their work related to collective bargaining and contract administration but not for the union's political activities.

Illinois state employee Mark Janus had asked the justices to overturn Abood, arguing that forcing him to subsidize positions he disagrees with violates his First Amendment rights.

His attorneys asserted that unions' bargaining with the government is political speech no different than lobbying the government.

They also contended Abood is "unworkable," in part because of difficulties in distinguishing between activities related to politics — for which fees may not be charged — and activities related to collective bargaining, which may be charged.

Michigan and several other states sided with Janus, highlighting municipal bankruptcies like Detroit's in which public-employee benefits played a role. They argued that collective bargaining affects taxpayers' pocketbooks.

Employees usually don't have to pay agency fees in Michigan or the 26 other states with right-to-work laws, though the ruling will likely affect police and fire employees who are exempt under Michigan's statute. 

"We are no longer exempt with this decision. It's disappointing," said Mark Docherty, president of the Michigan Professional Fire Fighters Union.

He said it remains to be seen how the change might affect his organization's revenue or membership, which is around 5,000. 

"It will be an impact, of course, because that’s what right-to-work is designed to do — weaken unions. But firefighters stand together," Docherty said.

"Very, very few are outside of the union, so we don’t have very many paying agency fees currently. That doesn’t mean with the decision, we won’t see more opting out and not paying anything."

Michigan Speaker of the House Tom Leonard, R-DeWitt, praised the high court's decision, saying "no one should be forced to join a political group against their will."

“Michigan is a Right-to-Work state because every working man and woman deserves a chance to find any career they want without being forced to support a union," Leonard said.

"Now people all across the country will have the same opportunity to make their own decisions and chart the course of their own future, no matter what political activities they support."

State Rep. Gary Glenn, R-Williams Township, also applauded the decision. He previously pushed to eliminate the Michigan exemption for firefighters and police officers from the state's right-to-work law. 

"Leaving their free speech and conscience rights unprotected under Michigan's right-to-work law was an unconscionable omission that has now been corrected by the U.S. Supreme Court, and rightly so," Glenn said.

Janus' union, the American Federation of State, County and Municipal Employees (AFSCME), had argued that agency fees ensure that all workers who benefit from a collective-bargaining agreement pay their fair share of the cost of negotiating and administering it.

Labor advocates say Janus' victory could sap union treasuries and lead to free-riding, in which employees opt out but still benefit from the union's bargaining for better wages, health care and workplace protections.

The leaders of several of the nation's largest public-sector unions said Wednesday they have prepared their local affiliates for a reduction in agency-fee revenue and are making the necessary budget adjustments. But they fully expect their unions to survive.

"We are all assuming that there will be some drop but not the draconian, existential threat that the right wing attempted to do when they started this fight years ago," said Randi Weingarten, president of the American Federation of Teachers, on a call with reporters. 

 "We know the fact that they've had to go to court — case after case after case — is they know that, organically, people will not walk away from unions."  

AFSCME Council 25, based in Lansing, denounced Wednesday's ruling, but President Lawrence A. Roehrig said that "no court case can stop our movement."

"Corporate interests and the right-wing media will use this case to predict the death of unions the same way they did after they passed Right to Work (for less) here in Michigan. Yet Michigan unions continue to add tens of thousands of new members every year," Roehrig said. 

Lee Saunders, national president of AFSCME, acknowledged his organization might see some sort of revenue loss but said leaders are working internally to communicate with members and non-members alike and "grow stronger" by prioritizing what their interests are.

“We are going to continue to be vibrant. We are going to continue to be aggressive. We are going to continue to be vigilant to meet the needs not only of our members but the needs of working families across the country," Saunders said. "That’s going to happen whether people like it or not."

Docherty said Michigan's firefighters remain optimistic despite the court’s decision.

“We are going to use the Janus case to better engage our members and create a unified front against the forces who choose to stand against better pay, health care, retirement security and safe communities,” he said.

Katharine O. Strunk, who teaches education policy at Michigan State University, said there's no question that public-sector unions like teachers unions will see membership rates and dues revenue drop, as well as their ability to influence policy. 

In Michigan, for instance, reduction in membership in the National Education Association accelerated after the state's right-to-work law went into effect in 2013 — falling from roughly 115,000 to 95,000 in 2016.

This outpaced a decline in the number of teachers underway due to shrinking enrollment statewide, Strunk said. 

"What I think is less discussed, but very important to remember, is unions are going to adapt," Strunk said. 

"Unions are going to be hit hard at every level and will have less money to spread around whether it's to help locals or influence national politics. But there's a lot of hysteria that this will just destroy the unions, and I just don't think that will happen."