The US Supreme Court heard arguments on Monday in the case of Janus v. American Federation of State, County and Municipal Employees, in which the court appears poised to strike a blow to organized labor by cutting off a major source of revenue for unions representing public sector employees. The plaintiff, Illinois state employee Mark Janus, is not an AFSCME member but pays “agency fees” to the union in return for benefiting from its collective bargaining activities—a practice allowed by the court in the 1977 case Abood v. Detroit Board of Education. Janus, represented by the anti-union National Right to Work Committee, contends that these fees violate his First Amendment rights by forcing him to fund an organization that engages in political activities with which he may disagree.
The Supreme Court came close to striking down Abood in a separate case in 2016, but deadlocked 4–4 after the untimely death of Justice Antonin Scalia that February left its conservative wing without a fifth vote. Now, with the conservative Justice Neil Gorsuch filling its ninth seat, the court is widely expected to rule in Janus’s favor, NPR’s Nina Totenberg explains:
To get a feel for the court’s thinking, take a glance back to the argument in 2016. The teachers union, joined by the state of California, contended that fair-share arrangements prevent strikes and internal strife by providing a single elected union for the state, acting as employer, to deal with, as opposed to competing unions and groups of employees.
In many close controversies, Justice Kennedy is the justice most likely to be open to persuasion, but he is something of a purist on First Amendment free speech questions. Two years ago, he disputed the characterization of those who didn’t want to pay partial union fees as “free riders.” Rather, he said, the union was making them into “compelled riders.”
Kennedy and other conservative justices on the court took the position that everything a public employee union bargains for involves public policy, and thus a public employee who disagrees with that policy should not be forced to pay for the negotiations.
While the court’s inclination in this case is unusually clear (Chief Justice John Roberts could conceivably break with the other Republican appointees, as he has in some other cases, but this outcome looks unlikely), less clear are the possible consequences of its anticipated decision. Shaun Richman, a union organizing director, argues in an op-ed at the Washington Post that breaking the longstanding arrangement between unions and employers will have unintended consequences that employers and the conservative interest groups backing Janus might not like:
As AFSCME’s attorney pointed out in his oral arguments, the agency fee is routinely traded for a no-strike clause in most union contracts. Should those clauses disappear, employers will have chaos and discord on their hands. … “No-strike” clauses buy employers a period of guaranteed labor peace. They would be basically unenforceable if workers could quit a voluntary association to engage in a wildcat strike, or join an alternative union that eschews signed agreements to have the freedom to engage in sudden unannounced job actions.
Studies that have attempted to gauge the impact on unions of abolishing agency fees have been inconclusive, however, Amelia Thomson-DeVeaux points out at FiveThirtyEight, so a decision against the AFSCME may or may not end up gutting the union as advocates suggest:
Individual studies have produced what seem like decisive answers to the question of what happens when the agency-fee requirement is removed — but taken together, they don’t present a coherent narrative. Part of the problem is that when economists design studies to address this question, controlling for all the right factors is difficult. Right-to-work policies, for starters, exist alongside other pro-business policies, and disentangling whether a loss in, say, manufacturing jobs is related to the decline of the unions or something like competition from abroad is tricky. …
A review of the empirical evidence surrounding right-to-work laws conducted by the Congressional Research Service in 2014 concluded that “even the most sophisticated studies are unable to fully isolate the effects” of different agency-fee policies.