How the Supreme Court Will Cripple Public Sector Unions

The Supreme Court will hear arguments on February 26th in Janus v. AFSCME Council 31, a case that could cripple public-sector unions across the country. Janus’ case challenges “agency shop” requirements in the public sector, which require that all individuals represented by a union pay a “fair-share fee” equivalent to the costs of their representation. While the Court previously found the agency shop arrangement to be constitutional in Abood v. Detroit Board of Education, the Roberts Court appears likely to reverse that unanimous decision and upend four decades of legal precedent, radically reshaping labor relations in the United States. A similar case, Friedrichs v. California Teachers Association, reached the Court last term, but the death of Justice Antonin Scalia meant that the Court deadlocked 4-4, allowing the present arrangement to survive. Scalia has since been replaced by the anti-union Neil Gorsuch, and a 5-4 decision for the plaintiffs is all but certain.

The case originated in Illinois: lead plaintiff Mark Janus is a Springfield native who works at the Illinois Department of Healthcare and Family Services, and he is represented by the legal arm of the conservative Illinois Policy Institute, a think tank bankrolled by Governor Bruce Rauner, the Koch brothers, the Walton Family Foundation, and an array of other conservative mega-donors. The case was originally brought by Rauner, a union opponent who previously attempted to eliminate fair-share fees; Janus was introduced as lead plaintiff after a lower court ruled Rauner lacked standing to bring the case. Janus and his team argue that financial contributions to public-sector unions are a form of political donation, and as a result the agency shop arrangement compels individuals to financially support political positions that they do not necessarily agree with. Currently, government workers cannot be forced to join a union or pay for its lobbying work. However, in twenty-two states—including union bastions like Illinois, New York, and California—they can be required to pay a fee to cover the cost of union representation. The plaintiffs contend that, for public-sector employees, the decisions addressed in collective bargaining are inherently political questions, and as a result no distinction can be drawn between political work and representation.

The respondents, by contrast, argue that the fair-share fees merely cover the costs of negotiating and administering collective bargaining contracts. Unions, by law, have to represent all employees in a bargaining unit; the fee simply covers the cost of that representation in collective bargaining, a process that often requires hiring expensive attorneys and financial experts. Without the agency shop arrangement, individuals that opt out would still earn the higher wages and better benefits negotiated through collective bargaining and would be represented by the union in workplace grievance hearings, all without paying anything for their representation. This creates a textbook example of a free-rider problem: there’s little incentive for anyone to join the union if you can still get all the benefits without paying membership dues. This free-riding drains union resources and means the union has less leverage at the negotiating table, weakening its ability to deliver better wages and workplace conditions. A weaker union discourages more workers from paying dues, further accelerating the spiral until it culminates in the destruction of the union.

Unions, expecting the worst, have responded by organizing: winning new contracts, attempting to convert current fee-payers into members, and generally attempting to engage rank-and-file members in the life of the union in order to minimize the expected membership decline after Janus. The decline itself, however, is all but certain. Strong, member-driven unions like the Chicago Teachers Union may suffer a less heavy blow, but every public-sector union will be negatively impacted to some degree by the Court’s likely ruling in Janus. Conservative groups will likely seize on the opportunity to run “open shop” drives, subjecting every union member to a barrage of propaganda urging them to quit the union and “give yourself a raise.” AFSCME, the nation’s largest public services employees union, estimated in 2015 that 15 percent of members would likely not pay dues, with an additional 50 percent on the fence. A revenue decline of between 15 and 65 percent would be catastrophic, both for the unions and for the workers they represent.

The immediate effect of the Court’s ruling would be to extend so-called “right to work” laws to public-sector employees in all fifty states. Public-sector unions, facing a decline in dues income, would be forced to reduce staff and limit their activities. The danger of workers walking away would further limit political activity on the part of the union. If workers can simply stop paying dues if they disagree with the union’s stance on an issue like healthcare or education, the dissenting political opinions of perhaps only 5 or 10 percent of membership could be sufficient to stop unions from engaging in any sort of political activity on an issue that would benefit the vast majority of their membership. With around half of the labor movement comprised of public-sector unions, this limitation would also severely impair the ability of the labor movement as a whole to participate in the democratic process, and limit the ability of unions to defend themselves against further anti-union lawmaking.

As for the workers themselves, research by the Economic Policy Institute suggests that the decline of unions nationwide has contributed to stagnant wages for union and nonunion workers alike—in other words, even those workers who benefit in the short term by saving money on union dues will ultimately see their wages decline. Specifically, the EPI has found that wages in right to work states are on average 3.1 percent lower than non-right to work states, and workers in those states “are less likely to have employer-sponsored health insurance and pension coverage.” Scott Walker’s Wisconsin is an excellent case study of the consequences of anti-union legislation for public-sector workers. In 2011, a fierce political battle over Republican anti-labor legislation resulted in the passage of a “right to work” law. Union density has since fallen by nearly 40 percent. With their unions less able to negotiate for better working conditions, teachers have seen salaries and benefits fall by almost 13 percent, or around $11,000, since the law’s passage, and record numbers of teachers are leaving the profession altogether. Barring unforeseen circumstances, the Court’s ruling in Janus will replicate those changes on a national scale, promising lower pay and worse working conditions for public-sector employees across the United States.

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