Free Riders

In a case that could have dire consequences for public unions, the Supreme Court weighs giving dues dodgers a pass.

Steven Wishnia Mar 1

Issue 233

This spring, the Supreme Court is likely to rule that public-sector unions must represent workers who refuse to pay them anything. That could have intense consequences in New York State, where more than 70 percent of public-sector workers are union members.

The Court heard oral arguments Feb. 26 in the case of Janus v. AFSCME Council 31. Illinois state worker Mark Janus, backed by an array of far-right legal organizations, contends that having to pay a fee to American Federation of State, County, and Municipal Employees Council 31 violates his free-speech rights because it forces him to give money to an organization he disagrees with.

Under current law, unions are required to represent all employees in a workplace, but those workers cannot be required to join the union. To balance that contradiction, the Supreme Court ruled in 1977, in Abood v. Detroit Board of Education, that workers could opt out of paying full dues, typically 1 or 2 percent of their annual salary, and instead pay an “agency fee” or “fair-share fee.” Those fees, typically 70 to 80 percent of full dues, cover the union’s bargaining and administrative costs, but exclude its political activities.

‘We are organizing, organizing, organizing — and it’s working.’

Janus’s lawyers argue that he shouldn’t have to pay anything. They claim all activity by public-sector unions is “political advocacy,” arguing that asking for a raise or smaller class sizes is lobbying the government for taxpayers’ money. William L. Messenger of the National Right to Work Legal Defense Foundation, representing Janus, called agency fees “effectively a form of protection money.”

Unions argue that agency fees are simple fairness, and that anti-union forces are using pretextual arguments to destroy workers’ bargaining power. If Mark Janus doesn’t want to pay the fees, United University Professions President Andrew Kowal says, “then if he’s going to be a responsible adult, he won’t take the benefits and protections of the union. What he wants is both ways. He wants to be a free rider.

“The idea that public-sector unions, everything we do is political, is just flat-out untrue,” he continued. “When we’re defending someone who’s up on disciplinary charges or has a grievance, those are not political issues.”

The case “did not grow from an organic, grassroots challenge to union representation,” the Economic Policy Institute wrote in a report released Feb. 21. It has been backed by a small group of foundations whose funders include the Koch brothers and the DeVos family. They finance numerous litigation and policy-advocacy groups that try to impede union activity, particularly in the public sector.

The Court is almost certain to rule against the unions. Two years ago, it deadlocked 4-4 on virtually identical arguments in Friedrichs v. California Teachers Association, after Justice Antonin Scalia’s death eliminated the fifth vote to overturn Abood. Scalia’s replacement, Neal Gorsuch, argued as a lower-court judge that a truck driver was justifiably fired for abandoning a disabled trailer after he drove off rather than freeze to death waiting for help to come.

Justice Anthony Kennedy, the usual swing vote between the Court’s liberal and far-right blocs, was openly antagonistic to the union arguments. He called agency fees “compelled justification and compelled subsidization of a private party.”

Learning from Wisconsin

If the Supreme Court outlaws fair-share fees, will unions’ fate be more like those in Wisconsin — where membership declined by one-third after Gov. Scott Walker’s 2011 laws choking public-sector collective bargaining and the 2015 law banning the union shop — or Iowa?

In Iowa, state law bans fair-share fees, and only 29 percent of the workers represented by AFSCME Iowa Council 61 pay to support the union. Yet it’s also a defensive-organizing success story. Last year, after Gov. Terry Branstad signed a law requiring public-sector unions to win recertification periodically — with a majority of all workers, not just the ones who voted — the unions won in 93 percent of bargaining units, with barely 2 percent of workers voting no. They realized they had to organize intensely after the law was enacted, Iowa State Education Association President Tammy Wawro told LaborPress last November.

New York State has the highest proportion of union labor in the nation, with about 24 percent of all workers union members, 72 percent in the public sector. “The New York City trade-union movement in my view is now the epicenter of defense for working people across this whole country. If the Koch brothers can beat us in New York City, then they’re going to beat us everywhere,” Transport Workers Union President John Samuelsen said at a Feb. 24 rally in Foley Square. “We must hold the line here, and I think we will.”

“We are organizing, organizing, organizing, and it’s working,” Barbara Bowen, president of the Professional Staff Congress, which represents 30,000 City University of New York faculty and staff, told The Indypendent. Wisconsin’s unions were taken by surprise in 2011, she says, but with this case, “there’s been much more time to prepare.” The PSC has been asking current members to sign “recommitment cards,” asking fee-payers to join and having “one-on-one, member-to-member conversations for months and months,” she says.

New York’s large public-sector unions, including the 125,000-member District Council 37 and the United Federation of Teachers, have also embarked on internal-organizing campaigns. “We’re trying to talk to every member we have,” says Mary E. Sullivan, executive vice president of the 300,000-member Civil Service Employees Association. “We are talking to the people who are fee-payers now to ask them to join us and stay with the union.”

Several union leaders say that most workers who pay agency fees aren’t union opponents dragooned into it, but people who just assumed they were already members. At CUNY, says Barbara Bowen, many staff, particularly adjunct professors, thought they were automatically members because fees were deducted from their paychecks and they went to union rallies.

About 30 percent of the workers DC 37 represents weren’t formally enrolled in the union, says treasurer Maf Misbah Uddin, “but because we were alerted on this, the last few years we have been going member to member, agency to agency, department to department.”

He sees the specter of Janus as a signal unions must change. “Labor leaders have to go to the membership, in the community, in the locality,” he says. If people haven’t joined, “it is only because we, the leaders, have not been able to convince them, explain to them and show them the difference between the union member and the nonunion member.”

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Illustration by Michael Grant.