February 26, 2018

Inching closer to freeing workers from compulsory unionism

By Deborah J. La Fetra Senior Attorney

This morning, I attended oral argument in Janus v. AFSCME, the case that will decide whether to overrule the 41-year old case of Abood v. Detroit Board of Education and henceforth prevent states from allowing unions to garnish the wages of public employees to support union activities. The Court was a hive of activity, inside and out – from the packed courtroom to demonstrations and counter-demonstrations outside to standing room only in the overflow room set aside for members of the Supreme Court Bar.

Usually attorneys hesitate to predict outcomes, but this case has an unusual posture. Two years ago, in Friedrichs v. California Teachers Association, the Court was preparing to rule on the very same question. Oral argument strongly suggested that Abood was about to go down. But then Justice Scalia died and ultimately the Court summarily affirmed the lower Friedrichs decision on a 4-4 tie and left Abood in place. The 8 Justices who heard Friedrichs remain on the Court, now joined by Justice Gorsuch – who remained quiet throughout this morning’s argument. None of the eight seem to have changed their positions, although there has been one significant switch in time: The Solicitor General’s office under President Obama supported the unions and the ability to compel non-union members to support the union’s activities. The new Solicitor General, Noel Francisco, appointed by President Trump, supports the workers and shared argument time with Janus’s counsel, National Right to Work Legal Defense Foundation attorney William Messenger. Justice Sotomayor pointedly asked Francisco, “How many times this term already have you flipped positions from prior administrations?” drawing a gasp from the listeners in the overflow room. It is, of course, not unusual for new Administrations to reconsider positions taken by their predecessors on the opposite side of the political spectrum. I took this comment mostly as a sign of frustration from one of the Friedrichs dissenters as to where this case appears to be heading.

The unions have long argued that they are entitled to non-members’ money to support anything related to collective bargaining, so as to avoid any free rider problems and promote labor peace. As PLF argued in our amicus brief, all public union collective bargaining is inherently political because involves the allocation of scarce taxpayer dollars, and non-members therefore have a First Amendment right to refrain from subsidizing it. The unions’ counsel tried to cabin the union’s activities to mundane work-related matters – wages, grievances, and the like – but Justice Kennedy wasn’t buying it. He asked, “If you do not prevail in this case, the unions will have less political influence; yes or no?”  AFSCME attorney David Frederick answered, “Yes, they will have less political influence.”  The Justice responded, “Isn’t that the end of this case?”

A decision is expected before the end of June.

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Janus v. American Federation of State, County & Municipal Employees, Council 31

The Illinois Public Labor Relations Act authorizes public employee unions to collect “fair share” or “agency shop” fees from non-member employees. Two non-member public employees sued to invalidate this law as an unconstitutional infringement on First Amendment rights. The Seventh Circuit Court of Appeals held that one employee was barred because of previous litigation and that the claims of the other employee (Mark Janus) were barred solely because of the Supreme Court’s decision in Abood v. Detroit Board of Education (1977), which permits unions to garnish wages of non-member employees for the purpose of collective bargaining and contract administration. PLF supports Janus’s petition for a writ of certiorari.

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