On June 27, 2018, the Supreme Court ruled, with a vote of 5 to 4, in favor of Marc Janus in the case Janus v. American Federation of County, and Municipal Employees. The Supreme Court overturns the 40-year-old precedence that mandated for unions in 22 states for non-members to pay agency fees that help fund collective bargaining activities. For the simple reason that regardless of membership status non-members still benefited from any bargaining outcomes.
Marc Janus is a state employee, non-union member, for the state of Illinois who does not agree on having to pay the monthly 45 dollars agency fee that the union, AFSCME, mandated. More specifically, Mr. Janus felt it was wrong for the union to use agency fees from both non-members and union members to help fund different political parties that did not necessarily represent the political views of everyone. On the other side, AFSCME argues that these fees are used for more than just funding political parties but that they are crucial for funding things like collective bargaining that help protect employees’ rights of both non-member and union members. It is important to start off by clarifying that this ruling only applies for employees and unions in the public sector. The reason for the exclusion of private sectors stated by Mr. William L. Messenger, attorney representing the petitioner, is that ‘they hinge on the question of state action’. (Messenger, supreme court transcript 2018) Unions in the public sector should remain unbiased when it comes to politics as they here to serve the greater good of the people. The firmest argument that ultimately gave the petitioner side the win is the dispute that such fees are a violation of the first amendment. Under the first amendment, citizens have the right to, freedom of association. Meaning that a non-union member like Mr. Janus should not be obligated to pay mandatory fees to a union he does not wish to be associated with because of their political contributions.
The argument here is that: Why should Mr. Janus a non-union member, any member for that matter, be forced to fund political activities that go against his political views? These agency fees are forcingly associating him with a political party that might not represent his values, there for violating his first amendment right, freedom of association. (Messenger, supreme court transcript 2018) According to AFSCME, agency fees are used for much more than funding political activities. These fees are crucial for funding operations having to do with the collective bargaining process which everyone benefits from including non-members as they are not excluded from such benefits. The AFSCME, urge the Supreme Court to up-held the decision made back in 1977 in the case Abood v. Detroit Board of Education which dealt with the same issues. Matt Ford, a former associate editor at The Atlantic, explains ‘Under Abood, unions can collect the fees without violating the Constitution so long as they only use the revenue to cover costs directly related to their collective-bargaining work.’ (Ford, 2017) Jessica Levinson, a professor at Loyola Law School, points out that Mr. Janus along with other nonunion members ‘isn’t actually forced to pay for these activities.’ (Levinson, 2018) Unions like AFCME give the option for any non-member to get a refund for their portion of any agency fee that is used for political reasons. Even if the AFCME and other unions is the public sector did not directly use nonmembers agency funds for political activities. Janus party explain that unions so-called bargaining activities are only lobbyist attempts that should be qualified as political associations. P.R. Lockhart, staff writer form Vox new, breaks it down more easily explaining that when ‘the union pushed for increased benefits at a time when Illinois is facing a budget crisis (…) and because he (Mr. Janus) disagreed with that political activity, he wanted to be able to opt out of paying any fees to the union.’ (Lockhart, 2018)
The AFCME counter-argument to this logic was what Justice Sonia Sotomayor pointed out during the hearing, we had always recognized the government as an employer (Sotomayor, supreme court transcript, 2018) and therefore in the public sector collective bargaining with the government should be view no different as in the private sector. Now that the decision has been made with the Supreme Court agreed that such agency fees are a violation of the first amendment, where does the future of collective bargaining stand? Collective Bargaining has been used as a method of negotiation between the employers and employees. Collectively coming up with a solution for the better of the group. In the public sector, we have seen many victorious outcomes for employees. Including pay increase, health benefits, better work and safety conditions, and pensions security to name a few. Ultimately, without the necessary funds, the effectiveness of collective bargaining is at risk. (Holder,2018) Unions and employee might have to settle short on many upcoming negotiations. Or perhaps be faced with the decision on what employee benefit is worth funding for. One of the reasons has that has made collective bargaining so successful a strong employee unity. ‘If the workers’ organization is weak, employers can say that it does not represent the workers and will refuse to negotiate with it’ according to Chad Smriti, shared article for yourarticlelibrary.com.
With this new ruling unions on the public sector can expect a decrease in membership and with low member numbers what is to say that the union knows what the best interest of the employees are anymore. A Union is there to represent the employees as a whole, but how can it do that with the participation of only a few Many argue that this is one of the biggest flaws of collective bargaining. According to Lombardo, ‘It presents a situation where a minority can consume a majority of the available resources, which creates the possibility of the union eventually imploding.’ Which in fact is what the public sector is going through. This brings us the concept of the ‘free riders’. One of the appealing arguments that AFCME tried to make is that by taking this agency fees you have nothing stopping employers in taking advantage of knowing that either way, they will gain the benefits without the pay. Unions will be expected to do the same work with little to no money (Holder, 2018) With weak unions the public sector is moving into ‘right-to-work’ territory. Which in many cases right-to-work policies make the employees much more vulnerable to unfair labor and practices. They are those in the opposing view that believe that this new ruling can make unions and their collective bargaining even stronger for those unions willing to put in the work. Many unions in the public sector are criticize caring more about the profit then the employee. Dave Jamieson from the Huffington Post explains ‘If workers can stop paying fair-share fees, unions will have no choice but to prove their value to those workers.’
Public sector unions will have to be more push forwarding when it comes to collective bargaining and making sure they are truly benefiting the employees. Many unions are already starting to shift their priorities and reevaluate their missions. The unions will have to work hard for their members and give them a reason to stay along with them and fight when they no longer are mandated to do so. (Jamieson, 2018) For many, it is still too early to know the effects that this ruling will have on unions. Public sectors have a greater number of members compared to the private sector. Throughout the last couple of years, there was been a larger growth in support as well. Smriti Chad from your article library points out that Unions would be non-existing without the first amendment freedom of association. ‘Where there is no freedom of association, there can be no collective bargaining.’ (Smriti, 2014) Which is the very same reason that brought us to the 5 to 4 ruling from the Supreme Court against agency fees to nonmembers. The law is never one-sided and is always in need of interpretation. Perhaps in the next few decades, we shall have a new interpretation of what it means to be unionize in America.