Justices May Decide to Revisit Public Union Fees

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By Chris Opfer

The U.S. Supreme Court may decide by the end of September whether to take up the case that could put an end to mandatory union fees for public sector workers, advocates on both sides of the issue say.

Lawyers for a pair of Illinois government workers challenging the “fair share” fees say the justices may rule on their review petition during the Supreme Court’s next conference, which starts Sept. 25. The workers want the high court to shoot down a U.S. Court of Appeals for the Seventh Circuit ruling that the fees are constitutional ( Janus v. AFSCME Council 31 , U.S., No. 16-1466, reply brief filed 8/29/17).

The Supreme Court has previously supported the mandatory fees, but critics are optimistic that Neil Gorsuch’s addition to the bench will turn the tide in their favor. The justices’ deadlocked 4-4 decision last year, in a case argued before Justice Antonin Scalia died, kept in place a ruling that allowed a California teacher’s union to charge administrative fees to nonmembers covered by the collective bargaining agreement.

“It seemed pretty clear Scalia was going to go with the other conservative members and strike down forced fees,” Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation, told Bloomberg BNA. “We are cautiously optimistic that Gorsuch would do the same.”

The NRWLDF is representing the workers in the case, which was filed against the State of Illinois and the American Federation of State, County & Municipal Employees. Lawyers for the state and AFSCME didn’t immediately respond to Bloomberg BNA’s request for comment.

Union Funding in Jeopardy

Fair share fee critics often argue that forced payments to unions violate workers’ free speech rights. Groups like the NRWLDF say workers are forced to financially support the union even if they disagree with the organization’s stance on collective bargaining and politics.

Unions point out that they are legally obligated to represent every worker in a collective bargaining unit, including nonmembers. Labor organizations are also restricted from spending nonmembers’ money on activities unrelated to bargaining, like political advocacy.

A ban on the fees would be a significant financial blow to public sector unions. It would also follow moves by 28 states to bar private sector unions from forcing nonmembers in a collective bargaining unit to similarly chip in on administrative costs.

Just over one-third (35 percent) of government workers are unionized. That’s nearly six times the rate of the private sector (6 percent).

Doug Bloch, the political director for a Teamsters Joint Council in California, told Bloomberg BNA the fair share challenge “goes hand-in-hand” with a push to enact a federal right-to-work law that would ban representation fees in the private sector nationwide.

“This ruling could be devastating for workers,” Bloch said. “The goal here is to weaken the power of unions.”

To contact the reporter on this story: Chris Opfer in New York at copfer@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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