A Supreme Court Decision Could Shrink Unions’ Power

Last week the United States Supreme Court heard oral arguments in Janus v. American Federation of State, County and Municipal Employees. At stake are agency fees — public sector unions can collect fees for service from employees who refuse to join the union that represents them, which Janus argues is an unconstitutional act of compelled speech.

Mark Janus, an employee of the Illinois Department of Healthcare and Family Services, has about $46 deducted from his paycheck every month to cover the collective-bargaining expenses of AFSCME, the union that represents employees at his state agency. Although Janus is not a union member, by law he receives all the rights and benefits under the contract the union negotiated for workers at his agency.

The union and government employer argue that Janus is trying to be a “free rider,” obtaining the benefits of union representation without paying his fair share of the costs. While some workers may disagree with the union’s goals, many others fully support the union’s goals of higher wages and better benefits but still hope to free-ride by having others rather than themselves pay the union dues.

It’s already possible for public employees to “opt-out” of paying that portion of their dues that fund explicitly political activity. But Janus argues that all dues paid to public sector unions are political because the consequences of collective bargaining in the public sector impact taxes, government debt, budgets and spending priorities. Janus contends that the agenda of public sector unions, including collective bargaining, is inherently political.

While a ruling is not expected until later this year, The Washington Post warns that a ruling in favor of Janus could have widespread unintended consequences, even for those who support the plaintiff’s case.

According to The Washington Post,

What the Janus backers (and most commentators) miss is that agency fees are not just compensation for the financial costs of representation, but for the political costs of representing all the members in the bargaining unit and maintaining labor peace. 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.

The combination of exclusive union representation, mandatory agency fees, no-strike clauses and “management’s rights” are the foundation of our peculiar labor relations system. No other country structures its labor relations system quite like this. Knock one part out, as the Janus plaintiffs aim to do with agency fees, and the whole system can fall apart. Employers will not like the chaos that this will bring.

The piece argues that if Janus prevails, thousands of contracts that would have to be renegotiated in a climate where an agency fee is no longer a trade for a no-strike pledge, which could lead to significant labor unrest across the country.

The United States Supreme Court has issued several opinions relating to the right of a public sector exclusive representative to collect service fees from nonunion members. In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the court found that, while an exclusive representative could collect a fee from nonunion members, the fee revenues could not be used to support ideological causes not germane to the organization’s duties as the collective bargaining representative. In another case, the Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986), the court held that, in order to protect nonunion members’ constitutional rights to freedom of speech and association, the union’s collection of agency fees must “include an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker, and an escrow for the amounts reasonably in dispute while such challenges are pending.”

There is no State law that generally allows all local government employees to engage in collective bargaining; rather, it is within the powers of the counties and municipalities in Maryland to pass local laws granting collective bargaining rights to their employees.

Several counties have exercised that authority and have some kind of collective bargaining for employees. Some allow collective bargaining for most rank and file employees. Others allow for collective bargaining for a specific group of individuals, such as police officers, sheriffs, or emergency medical personnel.

The extent to which a county’s code includes collective bargaining measures varies drastically from robust sections in the Montgomery and Prince George’s counties codes to Washington County, which simply states collective bargaining is authorized and strikes are prohibited.

Read the full article for more information.