Public Union Fees Battle Renewed With Gorsuch on Bench

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By Hassan Kanu and Chris Opfer

An advocacy group has asked the U.S. Supreme Court to reconsider whether public sector labor unions can require nonmembers in a bargaining unit to pay “fair share” fees ( Janus v. AFSCME Council 31 , U.S., No. not available, cert. petition filed 6/6/17 ).

The question comes amid speculation by advocates on both sides of the debate that Justice Neil Gorsuch’s recent appointment to the high court could sway it to reverse four decades of precedent allowing the fees. The court previously took on the issue in a different case, but split 4-4 after the death of Justice Antonin Scalia.

A ruling in favor of employees represented by the National Right to Work Legal Defense Foundation would strike a significant financial blow to public sector unions, which are already slashing budgets and looking for ways to bolster membership in anticipation of changes to federal labor law.

The fees are intended to compel non-union employees to pay their “fair share” of a union’s costs in bargaining for an employment contract. Anti-union groups opposing the fees argue that the requirement is an infringement of the rights of workers who don’t wish to be associated with a union or its political positions. Those on the other side typically respond that the unions are required by law to represent every worker, including non-members, and are restricted from spending non-members’ money on activities unrelated to bargaining—like political advocacy.

“We feel that forcing a public employee to subsidize the speech of a union they disagree with is a violation of the First Amendment,” NRTWF Vice President Patrick Semmens told Bloomberg BNA June 6. “Obviously the Supreme Court was interested in the issue a year ago, and we think there’s probably four votes on each side, which would mean the most likely scenario is that Gorsuch would be the decisive vote.”

“Whether over a bargaining table or at the legislature, unions in the public sector are effectively trying to change public policy, so that’s political,” Semmens said when asked about the bar on using funds for political advocacy.

That argument is “disingenuous,” Paul Secunda, professor and director of the labor and employment law program at Marquette University Law School, told Bloomberg BNA June 6.

“All workplace terms and conditions are not inherently political,” Secunda said. “Issues such as when you work, day or night shift, workplace safety—so much of the terms and conditions of employment have nothing to do with the revenue spent on public employment, which is what that argument suggests.”

Unions bargain over salaries and many other issues that “are just a matter of how things get done in the workplace given a certain amount of money,” he said.

Overall Union Membership in Serious Decline

The National Right to Work Legal Defense Foundation petitioned the high court to take up the question in a lawsuit brought by two Illinois government workers who say the forced fees violate their free speech rights. An appeals court previously ruled against the workers.

The NRWLDF also asked the justices in a separate case to shoot down an Illinois law it says gives unions “monopoly” representation power for home care workers in the state ( Hill v. SEIU, U.S., No. not available, petition for review 6/6/17 ).

Nearly a third of U.S. workers belonged to a public or private sector union 50 years ago. Currently, roughly 10 percent belong to a union, down .4 percent, or 240,000 workers, from last year, according to the Bureau of Labor Statistics.

Union membership in the public sector has generally been much higher than in private industry, and the rates have held much more steadily despite overall membership declining since the early 1980s, according to the BLS. Currently, about 34.5 percent of public workers belong to a union, compared with 6.4 of workers in the private sector. The numbers represent a historic low point in union membership.

Professor: Outcome Isn’t So Clear-Cut

Secunda disagreed that the previous 4-4 ruling is a strong indicator that either the court will accept the case or that Gorsuch will tip the scales in favor of right-to-work advocates.

“I would put the odds at 50-50,” Secunda said. “There’s some who think that its too soon after a 4-4 decision to take this on, and they should let this percolate a little more and let the Circuit [courts] weigh in.”

Ruling on an issue that the court was previously split on so soon after a new judge tips the scales in one party’s favor would also make for bad optics, the professor said. “That gives fuel to those who believe the court is nothing but a political instrument,” he said, an issue to which the justices are sensitive.

“On the other hand there’s four justices who seem ready to make the country a right-to-work country, so there’s some understanding why people might think” the NRTF has a good chance at succeeding, Secunda said.

To contact the reporters on this story: Hassan Kanu in Washington at hkanu@bna.com and 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; Chris Opfer at copfer@bna.com

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

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