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.”