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By Katherine Enright<\/strong><\/p>\n One case pending before the Supreme Court of the United States this term has the potential to disrupt the functioning of unions all around the country.\u00a0 On September 28, 2017, the Court granted certiorari in the matter of Janus v. American Federation of State, County, and Municipal Employees, Council 31<\/em>.\u00a0 The case arises from Illinois[1]<\/sup><\/a> and presents the question of whether the Court\u2019s decision in Abood v. Detroit Board of Education<\/em>,[2]<\/sup><\/a> should be overruled and public-sector \u201cagency shops\u201d deemed unconstitutional under the First Amendment.<\/p>\n Many states, including Illinois, have laws that permit a public-sector union to be elected as the exclusive representative of a class of public employees.[3]<\/sup><\/a>\u00a0 As the exclusive representative, the union is obligated to negotiate on behalf of all the employees it represents, regardless of union membership.[4]<\/sup><\/a>\u00a0 In order to \u201cpromote labor peace\u201d and avoid \u201cfree-riders,\u201d\u00a0 these unions are permitted to exact fees from non-union employees (\u201cfair share\u201d fees) to fund the costs of collective bargaining.\u00a0 Arrangements such as this are referred to as \u201cagency shops,\u201d and have been the subject of numerous cases in front of the Supreme Court in the last 40 years.[5]<\/sup><\/a><\/p>\n Non-union members who object to paying \u201cfair share\u201d fees have repeatedly argued that these arrangements are an unconstitutional violation of their First Amendment rights, as they are being compelled to associate with a union with which they disagree, and to fund the activities of that union.\u00a0 In the public-sector, where even routine subjects of collective bargaining are inherently political, the problem of compelled association becomes even more difficult.<\/p>\n Abood<\/em> and the cases that followed attempted to alleviate this problem by prohibiting unions from using \u201cfair share\u201d fees to fund speech that is political or ideological in nature.\u00a0 However, courts have encountered difficulties (in the context of public sector unions) in determining whether challenged union expenditures are \u201cgermane to collective bargaining\u201d (and therefore chargeable to non-union employees) or not.[6]<\/sup><\/a><\/p>\n The Petitioner in Janus<\/em> is arguing that Abood<\/em> should be overruled because it failed to apply the necessary level of scrutiny to public-sector agency shops.\u00a0 He contends that these arrangements cannot survive heightened First Amendment scrutiny and Abood<\/em> must be overturned.\u00a0 Whether or not that is true is a question for the Court.\u00a0 The same question was presented in 2016 in Friedrichs v. California Teachers Association<\/em>, 136 S.Ct. 1083 (2016); however, following the death of Justice Scalia, the Court split 4 to 4 on the question of whether to overrule Abood<\/em>.\u00a0 It is likely that Justice Gorsuch will be the fifth and deciding vote to overturn the 40 year old decision.<\/p>\n The potential effects of overruling Abood<\/em> are so substantial that no less than 26 amicus briefs have been filed in the case.[7]<\/sup><\/a>\u00a0 Janus is represented by the National Right to Work Legal Defense Foundation, an arm of the National Right to Work Committee (\u201cNRTWC\u201d), which has strong ties to the national right-wing network led by the Koch brothers.[8]<\/sup><\/a>\u00a0 NRTWC has lobbied extensively for \u201cright to work\u201d bills drafted by the American Legislative Exchange Council (\u201cALEC\u201d).[9]<\/sup><\/a>\u00a0 Overruling Abood<\/em> would be a huge victory for the organization, whose mission is to eliminate union power.[10]<\/sup><\/a><\/p>\n Conversely, a decision to overrule Abood<\/em> could have a devastating impact on public-sector unions and the individuals they represent.\u00a0 Such a decision would likely bring about a drastic decrease in union membership and power in collective bargaining.[11]<\/sup><\/a>\u00a0 According to the Economic Policy Institute, historically, as the rate of union membership decreases, the income share of the richest ten percent of Americans increases.[12]<\/sup><\/a><\/p>\n This could be a terrible blow to the middle class.\u00a0 Workers represented by unions generally have increased job security, earn higher wages, and have more inclusive benefit packages.[13]<\/sup><\/a>\u00a0 If Abood<\/em> is overruled and union power in collective bargaining is decreased, many public employees will suffer a substantial loss.\u00a0 This is especially true for minority workers, who are afforded much greater protection when represented by a union.<\/p>\n The case will likely be argued in January or February and decided before the end of the Court\u2019s term in June.\u00a0 Until then, public-sector unions will have to hope for the best but prepare for the worst.<\/p>\n <\/p>\n <\/p>\n Sources<\/strong><\/p>\n [1]<\/a>The case has a very strange procedural posture.\u00a0 On February 9, 2015, Illinois Governor Bruce Rauner signed an executive order directing \u201cfair-share\u201d fees to be held in escrow.\u00a0 The Governor then initiated a declaratory judgment action against all the unions in Illinois that represent state employees, including AFSCME, asserting that \u201cfair-share\u201d fees violate the First Amendment.\u00a0 The Attorney General of Illinois intervened in defense of the Illinois Public Labor Relations Act.\u00a0 She, along with other Respondents, moved to dismiss the suit, arguing that the district court lacked Article II jurisdiction because the Governor did not have standing to sue, in that his complaint did not allege a violation of his First Amendment rights.<\/p>\n While the motions to dismiss were pending, Janus and two other non-union state employees (who have since been dismissed from the action) moved to intervene as plaintiffs. \u00a0Petitioner, a non-union public-sector employee represented by AFSCME in the context of its collective-bargaining agreement with the government, sought to intervene, arguing that requiring him to pay \u201cfair share\u201d fees is a violation of his freedoms of speech and association.<\/p>\n The district court, in one order, granted Respondents\u2019 motion to dismiss the Governor\u2019s action due to the standing issue, granted Petitioner\u2019s motion to intervene, and granted Respondents\u2019 motion to dismiss the interveners\u2019 action on the merits, pursuant to Abood<\/em>.<\/p>\n [2]<\/a> Abood v. Detroit Board of Education<\/em>, 431 U.S. 209 (1977).<\/p>\n [3]<\/a> Illinois Public Labor Relations Act, 5 ILCS 315.1 et seq.<\/p>\n [4]<\/a> Id<\/em>.<\/p>\n [5]<\/a> See<\/strong> Ellis v. Brotherhood of Ry. Airline, and S.S. Clerks<\/em>, 466 U.S. 435 (1986); Lehnert v. Ferris Faculty Ass\u2019n<\/em>, 500 U.S. 507 (1991); Board of Regents of University of Wisconsin System v. Southworth<\/em>, 529 U.S. 217 (2000); Knox v. Service Employees International Union, Local 1000<\/em>, 567 U.S. 298 (2012); Harris v. Quinn<\/em>, 134 S.Ct. 2618 (2014); Friedrichs v. California Teachers Association<\/em>, 136 S.Ct. 1083 (2016).<\/p>\n [6]<\/a> See generally<\/strong> Lehnert v. Ferris Faculty Ass\u2019n<\/em>, 500 U.S. 507 (1991).<\/p>\n [7]<\/a> http:\/\/www.scotusblog.com\/case-files\/cases\/janus-v-american-federation-state-county-municipal-employees-council-31\/<\/p>\n [8]<\/a> https:\/\/www.prwatch.org\/news\/2014\/06\/12498\/who-behind-national-right-work-committee-and-its-anti-union-crusade<\/p>\n [9]<\/a> Id<\/em>.<\/p>\n [10]<\/a> http:\/\/www.nrtw.org\/about\/<\/p>\n [11]<\/a> \u201cThe Michigan affiliate of the National Education Association, for instance, has lost nearly 24,000 members since changes in its state law in 2012 (that\u2019s about a 16 percent reduction), and its annual receipts have dropped by about $10 million, according to records filed with the federal Labor Department.\u201d\u00a0 https:\/\/www.the74million.org\/janus-case-agency-fees-top-things-to-know\/<\/p>\n [12]<\/a> http:\/\/www.epi.org\/news\/union-membership-declines-inequality-rises\/<\/p>\n
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