Gorsuch Vote Could Revive Public Union Fees Case This Week

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By Hassan A. Kanu

A fight over whether public sector workers who don’t join a union can be required to pay “fair share fees” to the union could be revived when the U.S. Supreme Court this week considers which cases to take up in the current term.

The mandatory fees have been allowed for four decades. Public sector unions are generally obligated by law to represent nonmember workers even though they can’t collect other administrative fees from them.

The court is likely to announce on Sept. 28 whether it will hear the issue ( Janus v. AFSCME Council 31 , U.S., no. not available, cert petition filed 6/6/17 ). The case could pose a major threat to public sector unions’ ability to finance themselves, union advocates say.

The court split 4-4 on the question in March 2016 following the death of Justice Antonin Scalia. Many observers and stakeholders believe Neil Gorsuch’s confirmation to the high court could provide a deciding vote to ban the fees.

Business and anti-union advocacy groups argue that the issue is about free speech, because some workers may not want to be associated with the political positions and actions unions often take.

But worker advocates disagree.

“The rich and powerful interests behind this case are asking the Supreme Court to further rig the rules against working people and deny them the freedom to join together in a strong union to provide for their families,” Lee Saunders, president of the American Federation of State, County and Municipal Employees, told Bloomberg BNA in an e-mailed statement Sep. 25.

“Obviously the court has expressed interest in this issue,” given that it’s taken up similar cases before, Patrick Semmens, vice president for public information at the National Right to Work Legal Defense Foundation, told Bloomberg BNA Sept. 25. The foundation is an advocacy group that filed the petition that will be considered on behalf of nonunion public employee Mark Janus. The group’s mission “is to eliminate coercive union power and compulsory unionism abuses,” according to its website.

Some speculate the court might avoid ruling on an issue that resulted in a split decision so soon after a new justice is seated. Others say it’s a near certainty that Scalia would have voted against the fees and that the court could very well take up the case now that Gorsuch can provide the fifth and deciding vote.

Tied Up in Right-to-Work Debate

“The court split 4-4 in a one sentence decision—that wasn’t reconsidering the precedent; that’s just saying ‘we can’t come to a decision,’” Semmens said. “To me that’s the same effect as them not taking the case at all” because no justices expressed a position on the matter.

Richard Epstein, a law professor at New York University, said he doesn’t agree with the notion that rehearing the case this year after a recent split decision makes for bad optics.

“I think there’s a high chance the court takes up the case,” Epstein said. “This is too big a dispute for the Supreme Court not to get involved; it goes to the structure of everything.”

“There’s also an undercurrent because at the same time people are trying to attack the unions from the libertarian side, the unions are attacking right-to-work laws as being confiscatory,” he said. “If this case is not a suitable vehicle for some reason, they’ll pick it up some other time.”

Right to Work for Less?

Right-to-work laws often rescind a fair share fee requirement. There have been a number of state court challenges against such laws, and rumored 2020 presidential candidate Sen. Elizabeth Warren (D-Mass.) recently introduced legislation to abolish right-to-work nationally. The bill also has the backing of Sens. Sherrod Brown (D-Ohio), Kirsten Gillibrand (D-N.Y.), and Tammy Baldwin (D-Wis.).

“So-called right-to-work laws give corporations the ability to trample workers’ rights and dismantle unions. I refuse to let that happen,” Brown said in a statement. “Right to work is really right to work for less.”

Semmens said the foundation is “hopeful the court takes up the case, but we’re not expecting or counting on it.” He added, “We do have a number of cases on the same issue working their way through the court systems, so whether or not they take up this case, we think this issue will come before the court in the not too distant future.”

The case could potentially affect about 5 million public sector workers who pay fair share fees, according to the NRTW foundation.

Could Ruling Endanger Public Sector Unions?

Liberal lawmakers and pro-worker advocates have said a ruling that abolishes the fair share fee requirement could endanger public sector unions generally.

But Semmens said, “An effective union isn’t going to have a lot of difficulty with this.”

“In some states like Indiana, the number of union members increases after a right-to-work law is passed,” Epstein said. “Unions change their models and may become more pro-worker rather than pro-union.”

An untold story in this area is that “there’s always a conflict between union representatives, who want higher salaries, and the workers, who generally don’t want them getting higher salaries,” the professor said. Union representatives’ salaries are generally derived from member dues.

Without fair-share fees, many unions would have to work harder at strategies like accepting lower salaries for representatives and obtaining greater benefits for members, according to Epstein.

Union officials declined to comment on those arguments.

“Its not great for them, but they’re not going to let themselves die; they’ll have to figure things out,” he said.

The union membership rate for public-sector workers is 34.4 percent, compared with 6.4 in the private sector, according to the Department of Labor’s Bureau of Labor Statistics. The overall union membership rate has been in a continuing decline for decades. Nearly a third of all workers belonged to a union 50 years ago. That number was down to 10.7 percent in 2016, according to the BLS.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bna.com

To contact the editor responsible for this story: Chris Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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