On Monday, the Supreme Court will
hear oral arguments in what some are calling the most important union rights
case of the century. And many labor leaders and working people are bracing for
the worst when a decision is handed down later this year.
At issue is a decades-long precedent that allows public-sector unions to collect so-called “fair share” fees to help cover the cost of collective bargaining and other representation, which the union is required by law to provide, whether workers are union members or not. But it’s also about more than that.
“This case is a question of basic worker freedom,” said International President Lonnie R. Stephenson. “Do working people have the freedom to come together and be represented by strong unions who fight for fair pay, decent health care and a dignified retirement, or do they have that choice made for them by right-wing politicians and special interests? That’s up to nine justices, but their decision will have far-reaching consequences.”
The lawyers for the plaintiffs in the case, Janus v. the American Federation of State, County and Municipal Employees – the same National Right-to-Work Foundation attorneys who argued Friedrichs v. California Teachers Association before the court in 2016 – have been at this for some time, but they suffered a loss in the previous iteration when Associate Justice Antonin Scalia died just as he was poised to rule against the unions.
The resulting 4-4 tie – along ideological lines – preserved the “fair share” system for a time, but the corporate-backed plaintiffs rushed the Janus case into court, practically begging lower court justices to rule against them so they could speed their case directly to the Supreme Court.
The reprieve for public-sector unions – including the IBEW, which represents tens of thousands of public employees – ended up being entirely dependent on the results of the 2016 presidential election, and with Donald Trump’s election and the appointment of Associate Justice Neil Gorsuch to fill Scalia’s seat, this second attempt to strike directly at organized labor’s finances looks likely to succeed.
“We know where the eight previous justices stood after Friedrichs, and this is essentially the same case,” said Austin Keyser, the director of the IBEW’s Political and Legislative Affairs Department. “We don’t know for certain where Justice Gorsuch will fall on this issue, but his background doesn’t give me a lot of confidence that he’ll stick his neck out for working people. If he goes against us, we’re left with another painful reminder that elections have serious consequences.”
“Fair share” fees, which have long been protected under a 1977 Supreme Court decision called Abood v. Detroit Board of Education, are payments collected from non-members in a union shop that help to cover services related to collective bargaining or workplace representation. Lawyers to review contract language, for example, or a union official’s time spent filing a grievance or defending a non-member against disciplinary action are expenses that would be covered by these fees. By law, workers cannot be required to pay for the political activities of a union, and electing not to be a member of the unions allows a person to opt out of that portion of dues.
“Fair share fees are a simple way of making sure everyone contributes to the collective effort of employees in a workplace,” Keyser said. “Asking people to pay for a service they’re receiving shouldn’t be controversial, but these anti-union groups’ goal is to destroy the labor movement, and attacking our ability to provide collective bargaining services is their plan of attack.”
The 1935 National Labor Relations Act requires unions to represent every person in a union shop, regardless of whether they’re full dues-paying members. “Fair share” fees are a way to make sure everyone contributes to that representation.
In right-to-work states – there are now 28 of them – all bargaining unit employees can opt out of not only membership, but any fees altogether, while still receiving the benefits of a negotiated contract and union representation in disciplinary matters. This creates a “free-rider” problem, where members of a union pick up the slack for co-workers who choose not to contribute, which could eventually bleed a union’s resources dry.
“These attacks on unions tend to start with public workers, but they never end with public workers,” said Government Employees Department Director Paul O’Connor. “Every member of the IBEW or any other union should be concerned that they’re next if this succeeds. These big money, anti-union interest groups won’t stop until we’re out of their hair for good. And if we’re gone, who’s standing up for the American worker?”
Decisions on right-to-work used to be the job of states, Keyser said. “Politicians on the right like to talk a lot about states’ rights, but they also like to ignore those rights when it suits them.” Right-to-work has always been a state issue, he said, but when it comes to labor, anti-union elected officials seem prepared to throw out even their most solemn beliefs if it means organized labor is on the losing end.
The IBEW’s public sector workers who would be hurt by a ruling against labor work in public utilities, law enforcement, shipyards, government and more.
“Public workers already deal with enough,” O’Connor said, citing government shutdown threats, hiring freezes and regular political attacks. “Subjecting them to blanket right-to-work laws will further weaken their voice in the workplace and erode their ability to collectively negotiate fair contracts.”
“This pattern of attacking workers and the unions that represent them has been around at the state level for a long time,” Keyser said. “With Republicans in control of Congress, the White House and now the Supreme Court, I fear it’s only going to get worse.”
The real battle, Keyser said, comes this November when working people have the chance to make their voices heard at the ballot box. “Winning back the House and the Senate are going to be key to slowing down the anti-union fever gripping the Republican Party right now. Until then, we’re at the whims of a majority that doesn’t seem to like us very much.”
Working people are hosting a “Day of Action” around the country this Saturday, Feb. 24, to make their voices heard before the Supreme Court takes up the Janus case on Monday. See our story for details on how to participate in your area.