Justices clash on trashing mandatory union fees

Melissa Nann Burke
Detroit News Washington Bureau

Washington — Justices staked out familiar, divided positions Monday as the U.S. Supreme Court heard arguments in the latest challenge to the mandatory fees that some public employees must pay to their unions for negotiating their contracts.

Several of the court’s more conservative justices appeared poised to trash the fees, while the liberals worried about how such a ruling would diminish union resources to the extent that they potentially couldn’t adequately function.

There were no questions or comments from Justice Neil Gorsuch – an appointee of President Donald Trump – whose vote could decide the case after the other justices deadlocked on the question in 2016, prior to his arrival on the bench.

In one of the most closely watched cases of the session, the high court is reconsidering its ruling more than 40 years ago in a 1977 case known as Abood v. Detroit Board of Education, which unanimously upheld mandatory public-sector union fees, also called agency fees.

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

Illinois state employee Mark Janus challenged the law and is asking the justices to overturn Abood. He argues that forcing him to subsidize positions he disagrees with violates his First Amendment rights, asserting that bargaining with the government is political speech no different than lobbying the government.

Justices Samuel Alito and Anthony Kennedy seemed to agree with Janus, with Kennedy calling the arrangement “compelled justification and compelled subsidization of a private party a private party that expresses political views constantly.”

Attorney William Messenger, representing Janus, said agency fees aren’t necessary for union representation, and that the government can’t meet a stricter standard applied to claims involving “compelled” speech.

Justice Sonia Sotomayor told Messenger he was “basically arguing to do away with unions.”

Justice Elena Kagan expressed concerns about tossing out a longstanding precedent that could jeopardize thousands of union contracts in the 23 states that permit agency fees in the public sector, suggesting as many as 10 million workers would be affected. Employees usually don’t have to pay agency fees in Michigan or the 26 other states with right-to-work laws.

“When have we ever done something like that?” Kagan said.

Messenger replied that the prevalence of “compulsory unionism” provisions isn’t a reason for retaining Abood but for reversing it.

“You have wide-scale First Amendment violations, as you said, in 23 states affected,” he said.

Messenger suggested that many of the contracts at issue would survive, after removal of the compulsory provisions.

On behalf of the federal government, which sided with Janus, Solicitor General Noel Francisco also predicted there “probably wouldn’t be much disruption at all since you would simply invalidate individual agency fee provisions.”

Sotomayor noted that employment-related issues generally are not entitled to First Amendment protection, and pressed Messenger on why a collective group of employees negotiating together transforms such workplace matters into public policy.

“You have (the union) AFSCME bargaining over issues that affect hundreds of millions of dollars and affect thousands of employees across the board. The scale of that is what makes it political,” Messenger said.

The position of Janus’ union, the American Federation of State, County and Municipal Employees, is that agency fees ensure all workers who benefit from a union contract pay their fair share of the cost of negotiating and administering it.

David Frederick, attorney for the AFSCME, told Kagan that eliminating agency fees would reduce unions’ density, resources and membership, causing them to become “more militant, more confrontational,” to maintain fervency in their ranks.

Frederick said the government has an interest in negotiating with an exclusive partner and maintaining “labor peace” in the workplace.

The AFSCME attorney also stressed the problems stemming from free-riding, in which some employees opt out but still benefit from the union’s bargaining efforts. As more employees opt out, the dues and fees for those who continue to support the organization would go “up and up and up” — as will pressure to also opt out, he said.

When pressed by Kennedy, Frederick conceded that the case could also affect the political influence of the union.

“Yes, they will have less political influence,” Frederick said.

“Is that not the end of this case?” Kennedy replied.

“It is not the end of the case, your honor, because that is not the question,” Frederick said.

Frederick said the issue instead is whether states have the authority to set up a system in which the union is required to represent minority interests “on pain of being subject to any fair labor practice.”

He pointed out that an employee disagreeing with the union can try to convince the organization of his view or to speak as a citizen outside the organization to say why its position is wrong.

David Franklin, the solicitor general of Illinois who sided with the union, said Kennedy was very concerned about the ways in which unions bargaining with public employers affect public policy decisions such as the state budget.

“We’ve never denied that that’s true. There are ways in which collective bargaining hits the bottom line in Illinois and other states,” Franklin said after the arguments.

“That doesn’t mean that unions shouldn’t be allowed to insist that workers pay their fair share for the workplace activities that the union is legally obligated to perform for everybody.”

Patrick Wright, vice president of legal affairs for the Mackinac Center for Public Policy in Midland, was in the courtroom to witness the arguments.

“The assertiveness of Justice Kennedy’s questions was interesting. He seemed very much to not be taking the union’s or the state’s arguments,” Wright said.

“He seemed to have some strong concerns, and that showed through time and time again. He seemed every now and again to almost lost his patience with them.”

A new development since the justices last heard arguments on the issue was Justice Stephen Breyer’s expressed hope to find a compromise that would rework Abood by allowing unions to continue to collect agency fees but narrowing the category for what costs they may be charged, Wright said.

Alito, Kennedy, Chief Justice John Roberts and Justice Clarence Thomas have questioned Abood’s reasoning in recent years.

In a 2014 case, Alito said that under the First Amendment, “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Nineteen state attorneys general signed a friend of the court brief by the office of Michigan Attorney General Bill Schuette that urges the justices to abandon the “meaningless distinction between collective bargaining and other political activity.”

Keith Laing contributed