Landmark Supreme Court Case Could Significantly Weaken Unions
Author: David B. Weisenfeld, XpertHR Legal Editor
February 28, 2018
The Supreme Court heard oral arguments this week in a closely watched case affecting millions of public employees and perhaps the future of organized labor. At stake in Janus v. American Federation of State, County and Municipal Employees is whether unions can compel nonmembers to pay dues for representing them in contract negotiations.
Since the Court's 1977 ruling in Abood v. Detroit Board of Education, unions have been allowed to collect dues from all employees that they represent so long as the dues are being used for collective bargaining, contract administration or grievance adjustment purposes. However, those who object are not required to pay for political or lobbying activities.
But that precedent could be in jeopardy. A lawyer for an Illinois state employee who objects to paying his $45 monthly fee urged the Court to overrule Abood, saying it compelled support for speech with which many employees may disagree. William Messenger told the justices, "Collective bargaining is core political activity" since unions express political views.
At least four justices appear to agree. For instance, Justice Anthony Kennedy pointedly asked the union's attorney, David Frederick, "If you do not prevail in this case, the unions will have less political influence; yes or no?" When Frederick responded in the affirmative, Justice Kennedy asked, "Isn't that the end of this case?"
But the Court's four more liberal justices expressed concern about the practical implications of overruling Abood. For instance, Justice Ruth Bader noted that the resources available to unions would be substantially diminished.
And Justice Elena Kagan went further in noting that the 23 states (plus the District of Columbia and Puerto Rico) without right-to-work laws that permit unions to collect these fees from nonmembers all would have their laws struck down. "Thousands of municipalities would have contracts invalidated. Those contracts probably cover millions, maybe up to over 10 million, workers," said Justice Kagan.
The Supreme Court heard a similar dispute in 2016 in Friedrichs v. California Teachers Association and appeared poised to side with a group of school teachers who claimed the teachers' union was violating their free speech rights by compelling them to pay union dues. However, the death of Justice Antonin Scalia before the Court could rule dramatically changed the expected result and led to a 4-4 tie that left a lower court ruling for the teachers' union intact.
But with the Court now back to its full complement of nine members, much attention is being focused on Justice Neil Gorsuch, Scalia's replacement. Justice Gorsuch offered no clues during the oral argument as he did not ask any questions, but he generally voted with conservative colleagues during his years as a federal appellate judge. A decision in the case is expected by late June.