Supreme Court Decision in “Janus v. AFSCME” Will Undermine Teachers Unions and the Common Good

Yesterday the U.S. Supreme Court released its long anticipated decision in Janus v. AFSCME (the American Federation of State, County and Municipal Employees). The decision undermines workers’ rights by threatening the fiscal viability public sector unions, including teachers unions.

The same issue—union agency (fair share) fees—was heard in 2016 by the U.S. Supreme Court in the case of Friedrichs v. California Teachers Association, but after the death of Justice Antonin Scalia, the court split 4-4, and the issue at the heart of the case was left unresolved.  After President Donald Trump appointed conservative Justice Neil Gorsuch to the U.S. Supreme Court, and after the new case of Janus v. AFSCME was appealed to the high court, yesterday’s decision ending fair share fees had been expected.

Yesterday’s 5 to 4 decision was written by Justice Samuel Alito, Jr., joined by Chief Justice John Roberts, Jr., and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch.

Yesterday’s decision finds union agency fees to be a violation of First Amendment free speech, and stops the practice of forcing public sector employees, who choose not to join a union but whose job is protected as part of a union contract, to pay a fee to cover the collective bargaining part of the union’s work. Non-members (still covered by their unit’s collective bargaining agreement) have not been paying any fee to cover the political activity of their unions, but they have, until now, been required to pay agency fees to cover bargaining.

A report released last February by the Economic Policy Institute (EPI) explains how fair share, agency fees work: “Just like in any democratic institution, when a majority of employees in a bargaining unit choose to be represented by a union, the union then becomes the exclusive bargaining representative of all workers in the unit. The union has a responsibility to represent all workers in the unit, union members and employees who decide not to join the union alike, and the employer has a duty to bargain with the union over employees’ wages and working conditions.  Unions may bargain to include union security agreements, which allow them to collect fair share fees (also known as ‘agency’ fees) from employees who do not join the union but are part of the bargaining unit… Nonmembers’ fair share fees cover the union’s expenses related to collective bargaining and contract administration, but not expenses for political… advocacy…  A union is required to represent a nonmember worker who is mistreated by the employer as the nonmember pursues a costly grievance process, even if it costs the union tens of thousands of dollars. Fair share fees enable the union to charge nonmember workers for the right to access that service if they need it… Workers who choose not to pay union dues also receive the higher wages and benefits that the union negotiates on behalf of its members… Taking away unions’ ability to collect fair share fees—while they are nonetheless required to provide services and representation to nonmembers—would threaten the very essence of unions by weakening their financial stability.”

Weakening public sector unions is part of the far-right corporate political agenda. Political economist Gordon Lafer describes the impact of the the Red-wave 2010 election that turned more than half the states all-Republican: “For the corporate lobbies and their legislative allies, the 2010 elections created a strategic opportunity to restructure labor relations, political power, and the size of government… Starting in 2011, the country has witnessed an unprecedented wave of legislation aimed at eliminating public employee unions, or where they remain, strictly limiting their right to bargain… The number of public sector jobs eliminated in 2011 was the highest ever recorded, and budgets for essential public services were dramatically scaled back in dozens of states.” (The One Percent Solution: How Corporations Are Remaking America One State at a Time, pp. 44-45)

The Economic Policy Institute report examines the organizations behind the current wave of attacks on unions along with the funders who have underwritten the legal onslaught: “The National Right to Work Legal Defense Foundation, Center for Individual Rights, and Liberty Justice Center (an affiliate of the Illinois Policy Institute which has close ties with Illinois Governor Bruce Rauner, who has been involved with the Janus case since the beginning) are separate nonprofit organizations, but they share many of the same donors.”  The donors are a who’s who of the extreme right: Donors Trust/Donors Capital Fund, Sarah Sciafe Foundation, Lynde and Harry Bradley Foundation, Ed Uihlein Family Foundation, and Dunn’s Foundation for the Advancement of Right Thinking.  EPI continues: “How do these groups benefit by limiting workers rights?  Anti-worker policies shift a greater share of economic gains to corporate players and away from ordinary workers… As union membership has fallen over the last few decades, the share of income going to the top 10 percent has steadily increased… The erosion of collective bargaining is a core part of our nation’s problems of wage stagnation and rising inequality.  Workers who are not in a union have much less power to negotiate…”

Writing for The American Prospect, Celine McNicholas and Heidi Shierholz describe what has happened in Wisconsin following an attack on public sector unions led by Governor Scott Walker: “In dollars-and-cents terms, efforts to shrink state and local workforces and reduce public-sector workers’ compensation in order to reduce taxes disproportionately benefit the wealthiest households.  Wisconsin provides an important example of this impact.  Lawmakers there passed $2 billion worth of tax cuts from 2011 to 2014, paid for by the layoffs and wage and benefit cuts of public employees.  Far from benefiting the average taxpayer, fully half of the tax cuts went to the richest 20 percent of the state’s population.  An examination of Wisconsin’s education system reveals negative outcomes following the passage of a law that virtually eliminated collective bargaining rights for most state and local government workers.  Far from improving public services after the law passed, teacher turnover accelerated and teacher experience shrank; nearly a quarter of the state’s teachers for the 2015-2016 school year had less than five years of experience, up from one in five… in the 2010-2011 school year.  These data demonstrate that attacks on state and local government workers are likely to result in reductions in the quality of public services on which most state residents depend.  For families who depend on public education, maintaining a stable, experienced education workforce is critical.  And it is the stability and experience of state and local government workers—and the quality of services they provide—that is at stake in the Supreme Court’s decision in Janus.”

While the Janus plaintiff is a member of AFSCME, not a teacher’s union, McNicholas and Shierholz believe the effect of yesterday’s decision by the U.S. Supreme Court will have perhaps the greatest impact on teachers unions. Public schools are likely to be the institutions most affected simply because of the sheer number of public employees who are educators. Educators comprise 51 percent of all state and local government workers, with elementary and secondary school workers making up 39.9 of all public state and local employees.

McNicholas and Shierholz caution about the overall impact of yesterday’s Supreme Court decision: “This is what is at the core of Janus—whether a group of wealthy donors and corporations will be allowed to rewrite our nation’s rules to serve their own interests at the expense of the public good.  The financial backers of this litigation likely do not rely on public services to educate their children, care for aging parents, or provide support for disabled family members.  Increasingly, the wealthiest interests in this country are able to bypass the state for fundamental services. They exist apart from local communities and divorced from a shared interest in many public services. This results in cases such as Janus in which wealthy, corporate interests look for ways to reduce public spending on services that they don’t need to rely on. These wealthy corporate interests are not just attacking state and local government unions’ ability to protect good, middle-class jobs in public employment—they are also attacking the crucial services on which most Americans depend.”

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