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Stickin’ it to the union: What the Janus case means for organized labor in Minnesota

Mark Janus
REUTERS/Leah Millis
Mark Janus is cheered by supporters after speaking to them outside of the United States Supreme Court on Monday.

This week at the Supreme Court of the United States, the organized labor movement is fighting all-out in a battle it knows it will lose.

On Monday, justices heard arguments in a case — Janus v. American Federation of State, County, and Local Employees — that hinges on one question: can a public employee be compelled to pay fees to a union that represents her workforce, even if she herself is not a member of the union?

The high court has already considered versions of that question twice in the last four years. A 2016 case, brought against the California public-school teachers’ union, resulted in a 4-4 split on the high court after Justice Antonin Scalia passed away suddenly in February 2016 — upholding precedent that the practice of collecting these so-called “agency fees” from non-union members was constitutional.

That precedent is vital to the functioning of public employee unions: in 22 states, including Minnesota, these unions collect monthly fees from non-members so they can cover the cost of bargaining for benefits, pay, and workplace protections on behalf of those non-members. Nationally, unions collect such fees — sometimes called fair-share fees — from roughly five million workers.

Now, with the court vacancy left by Scalia filled by Justice Neil Gorsuch, President Donald Trump’s appointment to the high court, it seems likely that the court will strike down the constitutionality of the fair-share fee practice.

The case’s petitioner, Illinois government employee Mark Janus, argues that requiring non-union members to pony up agency fees infringes on their 1st Amendment rights: even if unions are bargaining on their behalf, they argue that the bargaining of benefits and salaries is inherently political speech, and that unions are forcing them to subsidize political speech they may not agree with.

The world of organized labor — from the public-sector unions most directly affected to their allies who represent private sector employees — has mobilized furiously ahead of the case. They scoff at the free speech and workers’ rights arguments offered by Janus, and have cast the case instead as the latest, and perhaps gravest, of many attempts from wealthy conservatives to weaken the power and influence of labor unions.

Union dues and political speech

Janus is an employee of the Illinois Department of Health Care and Family Services, but he is not a member of the local chapter of the American Federation of State, County, and Municipal Employees. The union, which has 1.6 million members nationwide, has an agreement in place with the Illinois government to bargain on behalf of 35,000 members of the state government’s workforce.

Members of AFSCME, like those of all unions, pay dues to support the union’s activity as a negotiator. For people like Janus, who are not members, AFSCME collects money off their paycheck each month — in Janus’ case, $45 — to support its representation of the workforce.

Unions say this work is apolitical, and that dues and agency fees do not support their considerable political activity, which is instead funded by voluntary contributions. Labor unions collectively inject hundreds of millions of dollars into campaigns each election cycle, and they have historically represented a significant and reliable stream of support for Democrats.

Whether or not union negotiating is political is a central point of dispute in the case: Jason Flohrs, the director of the Minnesota chapter of Americans for Prosperity, a conservative activist group backed by the billionaire Koch brothers, argues it is impossible for unions’ negotiating activity to be non-political.

In negotiations, unions take stances on issues related to the budget, pensions, and education policy — all of which are intrinsically political topics, Flohrs argues.

“It’s not constitutional,” he said of agency fees. “These union members have a right to support causes they believe in and to not support causes they don’t.”

The legal benchmark for agency fees is a 1977 case, Abood v. Detroit Board of Education, in which the Supreme Court unanimously ruled against a group of Detroit public school teachers who argued they should not be required to pay fees to a union they did not belong to.

The country had just experienced a period of labor disputes and work stoppages in the public sector, and the Supreme Court reasoned that allowing unions to collect agency fees — a practice already in place then in private-sector union workplaces — could avoid strife by eliminating the so-called “free rider” problem.

The free-rider issue is a central component of the unions’ logic: though no worker can be forced to join, the unions maintain it is fair that workers who benefit from the union’s representation fund at least some of that representative activity.

In a brief filed in support of AFSCME, the attorneys general of several states, including Lori Swanson of Minnesota, maintain that agency fees do not violate 1st Amendment rights.

“An employee remains free to speak against a union’s political agenda or negotiating positions, and to oppose the government officials responsible for negotiating the union’s contract,” the attorneys write. “Agency fees merely require an employee to pay for services rendered.”

The impacts in Minnesota

A ruling in favor of Janus could have far-reaching impacts in Minnesota, where organized labor has traditionally been powerful. In 2017, 15.2 percent of Minnesota workers — about 411,000 — belonged to a union, compared to the national average of 10.7 percent, according to the Bureau of Labor Statistics. The number Minnesota workers who are represented by a union — but aren’t necessarily members — is a slightly higher figure: 16 percent.

Public sector unions account for at least a third of Minnesota’s total union representation. Education Minnesota, the teachers’ union, has 70,000 members, while AFSCME has 56,000 and the Minnesota Association of Professional Employees, which also represents state government workers, has 14,500.

Organized labor and its allies fear that the loss of agency fees would deprive these unions of a significant source of revenue, which could increase dues for card-carrying union members. “Without agency fees, union members would be required to pay more in union dues — and take home less pay than their colleagues — to subsidize the cost of providing workplace services to non-members,” the attorneys general write in their amicus brief.

That fuels another concern: a ruling for Janus could prompt current union members to reconsider their membership in the union. If they knew they could get representation without paying for it, the logic goes, then why would they pay?

Jennifer Munt, a spokesperson for AFSCME’s Minnesota chapter, concedes the union will lose some members as a result of a ruling in favor of Janus. But “unions will always be the most effective way for workers to pool their resources to fight for their families and communities,” Munt said. “The forces behind this case know that. That’s why they rigged up this attack.”

Others in the Minnesota labor movement forecast heavy losses as a result of Janus. Bernie Hesse, an organizer with the United Food and Commercial Workers chapter that represents 10,000 private-sector workers around Minnesota and in Wisconsin, has worked alongside UFCW's public-sector allies in the Janus push.

Hesse said a ruling in favor of Janus means that some public-sector unions could lose as much as 40 percent of their membership. “Your fee payers, they just say, I’m not going to pay [the] fair-share [fee],” he said. “You’ve gotta represent me, so I don’t gotta pay.”

Though agency fees are not used to finance unions’ political activity — like contributing to campaigns or organizing voters — losing that source of funding could force unions to cut back on their political spending to cover other costs.

If that ends up being the case, Democrats stand to lose, too. AFSCME gave $15.6 million to candidates in the 2016 election cycle, nearly all of which went to Democrats. DFL Reps. Keith Ellison, Rick Nolan, and Tim Walz all got at least $10,000 from the union in that cycle.

Public sector unions are also powerhouse players on the state level: Education Minnesota's political action committee spent $2.8 million in 2016, while AFSCME's PAC spent $928,000. Much of that money went toward organizing for Hillary Clinton’s presidential campaign, but it also supported state-level candidates.

Nothing more to lose?

Oral arguments in the Janus case, which took place Monday morning, saw the high court split along the same lines as it did the last time it considered this question, in 2016. The justices’ comments during argument reflected the stark stakes each side has advanced in the case.

Justice Sonia Sotomayor, one of the court’s liberals, told an attorney arguing on behalf of Janus that “you’re basically arguing — do away with unions.” Meanwhile, Justice Anthony Kennedy, the court’s perennial swing vote with a libertarian streak, said unions were working together with government officials to expand the size of government.

For all the argument, Gorsuch’s confirmation made the outcome of Janus a foregone conclusion, and labor unions have treated it as such. The flurry of rallying and organizing around the court’s hearing of the case, labor advocates say, is more geared toward demonstrating workers’ displeasure — and toward preparing the labor movement for the post-Janus world.

“Our sense has been, we need to prepare for when this happens, not if it happens,” AFSCME’s Munt says. “We’ve been taking this as a wake-up call to do internal organizing so members stick with their union, and we believe our members will choose to do that.” (Munt also predicted a decision in favor of Janus could come especially early, so as to maximize the political impact on unions early in the 2018 midterm cycle.)

UFCW’s Hesse said that Janus will force unions to do more organizing work than ever, and build up their units person by person. He mentioned a UFCW affiliate at a Quaker Oats plant in Iowa, which is a so-called “right-to-work” state where fair-share fees are not compulsory in public or private sector workplaces. “It’s a 600-person unit, and 598 people pay dues,” Hesse said. “They created a culture: this is your union, you own it.”

Union organizers are ready to do that work, but Hesse says it’s not all silver linings. “Here’s what I’d say to folks that hate unions, and really hate public sector unions: be careful of what you bust up here. What you’re going to do is create a more radical, more militant membership. You’re getting to the point where people have nothing to lose.”

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Comments (21)

Union money

Why write a story in 2018 and use campaign finance numbers from September of 2016? When the dust settled on the 2016 election, Education Minnesota raised and spent $3 million, not the $1 million cited. AFSCME raised and spent $2 million, not the $600,000 cited.

That's fake news.

Fair point, Bill — it's not

Fair point, Bill — it's not fake news, but I should have used the more recent data. I've updated the article to include end-of-year spending totals from both unions.

In the private market, union

In the private market, union labor must compete with everyone else. If their work product does not warrant their additional cost, a customer can go elsewhere. This is not true with government employees. Further, unions pit employees against the people they are supposed to serve, namely us.

FDR, no friend to the right, saw the danger of unions in government, and he condemned it. Now is the time to heed his advice, and I would certianly add the teachers into the mix.

Freeloaders

Here is how unions should deal with this, if these freeloaders are exempt from unionist dues. If workers don’t pay dues, they get no services. They negotiate individual contracts with employers with none of the language plagerized from the contract. If they leave the union, that becomes their new official start date for seniority. If there is a layoff, they aren’t exempt. And union members do not to acknowledge or help them, as they are management spies hired to undermine salary and benefits.

No dues No benefits

I agree that non dues paying employees should not get the benefit of union bargained services. It's a false choice to let them benefit from the services paid for by others. If they think they can do better on their own let them. Don't let them hide behind others. Either they want the benefit of collective bargaining or they don't.

Freeloaders

I like your thoughts except that STATE law requires the union in this instance to represent all employees in the bargaining unit, whether they pay any dues or not. If I were a smaller federal government conservative I would be horrified that a 5 person majority of an unelected body for life would upend decades of STATE labor laws in this fashion.

Someone who does not belong

Someone who does not belong to a union is not subject to any seniority list. They will be judged by their value, as is correct and proper.

They are also free to negotiate for a salary commensurate with their contributions, again, correct and proper.

I don't see the problem.

Merit

Prosper or not based on your own merit. What a great idea! You could build a great country with ideals like that!

Free Speech For Whom?

Mr. Stegner brings up the crucial free speech issue at hand. We know that money is speech, SCOTUS told us so. Current labor law requires labor unions to represent all member of the bargaining unit, even those who refuse to pay agency fees. So how can the law require speech (in the form of money to pay for representation of free loaders) by dues paying members?

Whether representing publicly or privately employed free loaders, some union is going to take this case to SCOTUS. And if union members free speech rights are upheld, it will create some grief for employers. One benefit of the current system for employers is that they only have one union to bargain with. But if unions only need to represent dues payers, the employer with say a 75 person workforce may have one union representing 20 people, a second representing 30, and a third representing 15. Any employee could jump from one to another, or try to cut their on deal. Before the NLRA as passed, this was the situation. And that's why the one bargaining unit-one union rule was part of the NLRA, at the behest of the employers.

And when did conservatives become so enamored of free loaders? Back in the day, conservatives admired responsibility and those who pulled their own weight.

With respect, and speaking

With respect, and speaking just for myself, declining forced participation is not "freeloading".

I'd expect to have nothing to do with unions, their salary negotiations, seniority lists or strikes if I declined to join them.

I'm content to speak for myself.

"Right to work"

The Supreme Court did not rule against the teachers who objected to the union dues in the Abood case; it ruled in their favor but sent the case back to the lower courts to decide on where to draw the line between use of union dues to subsidize "ideological activities" they disagreed with and the use of such dues to pay for collective bargaining activities which were held permissible and "nonpolitical". All of the arguments being made in this Janus case were raised and considered in the Abood case with the difference being that Janus wants the Court to hold that no line can be drawn between collective bargaining activities and "ideological" ones so that compulsory union dues will be a per se violation of the First Amendment. It seems everyone believes this is going to happen.

Treating collective bargaining as "political activity" on par with and equivalent to "ideological activity" (which seems unavoidable if Janus is to prevail) will only lead to further challenges to other labor laws, such as the National Labor Relations Act. The vitality of the NLRA has already been drained by amendments like the Taft-Hartley Act and the Landrum-Griffin Act, as well as years of politically motivated administrative and court interpretations. If it's decided as predicted, Janus will lead to yet further court challenges under the First Amendment leading ultimately to a reversion to a First Amendment "right to work" by which employers will be given standing to assert for employees, just as they were allowed to assert "liberty of contract" to invalidate hours or work and minimum wage laws in the past. Both 'right to work" and "liberty of contract" are predicated on the supposedly "natural law" principle of so-called "free labor" that affords each individual "the right" to "freely" negotiate an individual contract with an employer. As if.

It seems appropriate that this case is named after the two-faced Roman god of duality, representing the end and the beginning. Janus seems likely to be the end of protection of employee, human right of collective bargaining and the beginning of the protection of employer right to extract wealth under the guise of protecting corporate free speech. Janus-faced is also the symbol of deceit. Just as the First Amendment has been twisted to provide us with an Orwellian doctrine of "money is speech", Janus will make us all equal, except those of us who have the corporations and money, who are even more equal than the rest of us.

Unions have dwarfed

Unions have dwarfed corporation political spending.

They are both composed of people; the difference is that corporations earn the money they donate, unions just take it from your pay check, whether you like it or not.

One has a future; the other does not.

Not True

Union political funds are voluntary contributions by members. No one in America is required to be a member. One may opt to just pay agency fees, the direct costs of contract administration, which are typically around 85-95% of dues.

So in fact union members get a direct choice of whether or not to make political contributions. Not so for stock holders, who only get an indirect choice.

Poor Shelly Adelson and those nice Koch boys, those freedom fighters don't stand a chance against those union thugs!

Source

Do you have a source for this claim? Given the very wealthy donors out there... I find it hard to believe.

How would you know if true?

Corporate political spending does indeed have a future and probably a bright one. Union political spending has some sort of future, maybe not so bright. What this future means for the public and the human beings which must earn a living in this plutocracy may not so bright either.

Anyway, corporate campaign spending is unregulated and unreported. So how would you know if union political spending exceeded corporate political spending is a true statement?

Corporations are in theory and law owned and controlled by their stockholders. We know that today that is de facto an anachronism and a complete fiction. Political expenditures are appropriated out of pre-dividend corporate earnings which are rightfully owned by stockholders. Stockholders never get to vote on their corporation's diversion of earnings into the election system. Neither do consumers. The economy today is dominated by monopolistic combinations and cartels which charge prices at above a level they would be if truly competitive. For the many products and services that are necessities, consumers in USA.com have their money taken from them to be spent on political candidates, parties and ideologies that are repugnant to them whether they like it or not.

Minnesota is doing just fine by public employee unions. Public employee collective bargaining is a creature of state statute. Is state policy to be dictated by the unelected US Supreme Court now because a majority of its members think collective bargaining is "political" and therefore under the First Amendment? When it comes to unions, conservatives are prepared to set aside the Tenth Amendment. People who don't like states where public employee unions and collective bargaining contribute to an overall robust and more equal society can always move to Mississippi, Alabama, Louisiana, Wisconsin (where public employee rights were overturned by an elected right wing Governor and state legislature and it remains a contested issue) or any number of other "right to work" regressive states where government is more attuned to their ideological sympathies.

Looks like the IG (Average argument)

Got 1000 union guys in a room, and 1 big leftist spender, the 1000 throw in $10 each, the big spender throws in $1M. All at once the Union guys are averaging $10,000 per guy, see how powerful they are?

The "corporations earn their money", says who? Do you really know how money is made in a corporation? How about they make their money on the backs of their employees, and by rigging tax, commerce laws etc. !
Do you really want to go there?

Usual Questions

How many here who strongly support Public Employee unions make your personal spending choices in order to support Private Employee unions and their employees?

Do you make your purchases to ensure the products and services are provided by American Union Workers whenever possible?
https://www.american.edu/kogod/research/autoindex/

If so, excellent !!!

If not, what is your rationale for being pro-public employee union when you know that it drives up the taxes for all of us?

Here are some wise words from FDR.
http://www.politifact.com/wisconsin/statements/2013/aug/13/scott-walker/...

Well...

This is what 4 decades of lip service from a neoliberal Democratic Party has gotten Labor. We're stuck with it now but next time these guys show up asking for money someone should ask them where they've been for 40 years?

Glass Houses

So I have to ask: what kind of cars, major appliances, cell phones, etc do you buy?

Do you look for the Made in America, Union Made, etc stickers or do you buy what gives you the most personal value?

FDR was right

FDR was right in that he did not believe unions should be in government. Working in government is to serve the taxpaying citizens. Sadly that is not the case today as we can see in Washington D.C. today.

If she does pay the fees,

If she does pay the fees, then she is a member. If she doesn’t then she is just shooting herself in the foot.