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By Chris Opfer
Justice Neil Gorsuch will get much of the credit—or blame—if the U.S. Supreme Court makes it much harder for some unions to collect fees next year. But a lesser-known advocacy group with some deep-pocketed backers also is ready to take a bow.
“We believe workers should be able to join and participate in labor unions, but we don’t believe that you should be compelled to pay fees to a union just to get or keep a job,” National Right to Work Committee President Mark Mix told Bloomberg BNA. Mix also heads the National Right to Work Legal Defense Foundation, which represents Illinois government worker Mark Janus in a lawsuit that the high court recently agreed to take up.
The case challenges mandatory “fair share” fees for nonunion members who are covered by a collective bargaining contract. The groups have been trying for more than four decades to get the justices to ban unions from forcing government workers to pay for representation. With Gorsuch on the bench and a fresh challenge before the court, advocates on both sides say this could be the latest domino to fall against organized labor.
“They have been relentless in bringing cases against unions,” Wilma Liebman (D), a former National Labor Relations Board chairwoman, told Bloomberg BNA about the foundation. “They latch on to an issue and litigate it to death in the name of employee free choice. It’s all just a very sustained attack on unions.”
The court battle is part of a two-pronged offensive against organized labor. The committee actively lobbies for right-to-work laws that ban private and public sector unions from requiring nonmembers to pay fees, while the foundation provides free legal representation to workers who oppose the fees or want to decertify their unions.
The groups’ work is funded in part by nonprofit organizations founded or helmed by executives from Wal-Mart Stores Inc., Koch Industries, and pharmaceutical maker G.D. Searle LLC, as well as a foundation created by the estate of billionaire investor Shelby Cullom Davis.
Unions point out that they are legally obligated in many states to represent all workers in a collective bargaining unit, whether the worker pays dues or not. Moves to block fair share fees or related costs allow “free riders” to reap the benefits of unionization—often including bigger paychecks and better benefits—without having to pony up, they say.
“The National Right to Work Committee is a front group for corporate interests, the Kochs, and right-wing politicians to use the courts and legislatures to destroy unions and rip away workers’ freedom to fight together for a better life,” AFT president Randi Weingarten told Bloomberg BNA via email. “They’ve spent years chipping away at the economic security of working people and rigging our economy and politics in favor of the rich and powerful because they don’t want working people to have a voice or power in our country.”
The committee and foundation are not the only ones pushing the right-to-work agenda, but their collective long game with other similarly funded organizations is paying dividends. A total of 29 states have laws on the books banning union security clauses, and many observers on both sides of the aisle say it’s likely just a matter of time before the Supreme Court axes the fees in the public sector altogether. The high court appeared ready to do that in 2016 but locked in a 4-4 tie after Justice Antonin Scalia died. That makes Gorsuch, who replaced Scalia on the bench, the key vote.
If the court shoots down the fees in the public sector, some advocates fear the justices may also eventually ban the charges for private workers.
“This has the potential to be an existential threat to unions,” Liebman said of the Janus case. “There’s a legitimate fear and they are all thinking really hard about how to address it.”
It was all the way back in 1976 that National Right to Work Legal Foundation attorney Sylvester Petro first urged the justices to shoot down “agency shop” arrangements that require government workers to pay union fees even if they are not members ( Abood v. Detroit Bd. of Education , 431 U.S. 209 (1977)). The foundation, through lawsuits waged free of charge for the workers represented, has been arguing that the fees violate the First Amendment ever since.
“The legal arguments that are being made really haven’t changed,” Scott Kronland, who represents unions as an attorney for Altshuler Berzon LLP and has frequently faced off with the foundation in court, told Bloomberg BNA. “What has changed are the justices on the Supreme Court and the amount of right wing billionaire money that’s being poured into the anti-union movement. We’ll see if that makes a difference.”
The high court in the Abood case disagreed with Petro and the foundation, finding that Michigan teachers required to chip in fees to the union representing them in collective bargaining didn’t have a First Amendment right to decline those fees and keep their jobs. But the court did say that unions can only charge nonmembers fees related to bargaining and representation, not political and other ideological activity.
The foundation and like-minded groups like the Pacific Legal Foundation, the Mackinac Center for Public Policy, and the Liberty Justice Center, have since convinced the court in a series of cases to further whittle down the fees. The groups have been encouraged by those decisions and in opinions from Justice Samuel Alito to continue fighting to scrap the agency shop arrangements altogether.
Alito penned a majority opinion in 2012 in which the court said a California union could not impose a special assessment fee on nonmember workers without first getting their affirmative consent. Two years later, he wrote the opinion in another 5-4 decision, this time ruling that a union couldn’t force government-paid home care workers who chose not to be union members to pay fair share fees.
“That just undercut every pillar of Abood,” Deborah LaFetra, a Pacific Legal Foundation attorney who has argued against the fees, said of the latter decision. “It was clear that Abood was going to go down if the right case came along.”
The First Amendment argument that public sector workers can’t be forced by their government employers to pay fees to a union they don’t want to support is a little different for private workers, who are covered by the National Labor Relations Act. Although several observers told Bloomberg BNA they expect to see the high court eventually take up the right-to-work debate for private workers, Mix said the question is better left to legislators for the time being.
“I think it’s a different issue and I think it’s a different question when it comes to the private sector,” Mix told Bloomberg BNA. “The preferred way is the legislative track, both at the state level and the federal level, for the private sector.”
The share of private sector workers who are union members fell from 21.7 percent when the Abood case was decided in 1977 to 6.4 percent in 2016, according to Bloomberg BNA labor data. Union membership ticked up slightly in the public sector over the same time, up to 34.4 percent last year from 32.8 percent.
The Committee and Foundation don’t publicly disclose their donors. “We aren’t going to put them at risk of the type of intimidation and harassment that sometimes comes with standing up to Big Labor,” Patrick Semmens, spokesman for the foundation, told Bloomberg BNA.
Charitable organizations directly funded by or with ties to Koch Industries bosses Charles and David Koch pitched in at least $1.6 million to the committee and foundation from 2010 to 2015, the last year for which tax filings are currently available. Those organizations include the Charles Koch Foundation, Freedom Partners Chamber of Commerce, Donors Trust Inc., and Donors Capital Fund.
The Lynde and Harry Bradley Foundation gave more than $530,000 to the foundation over the same time period, and the Searle Freedom Trust chipped in $360,000.
The groups’ annual funding levels ($13.3 million combined in 2015) are in the same ballpark as worker advocacy groups more ideologically aligned with labor unions, like the National Employment Law Project and the Economic Policy Institute. NELP brought in about $8 million in contributions in 2015, while EPI received more than $6.4 million.
“We always get accused of being a tool of big business,” Mix told Bloomberg BNA. “I tell people that if we are a tool of big business, I should get fired because we’re not really that big.”
The foundation uses at least some of the money to represent workers free of charge. Mix and Semmens told Bloomberg BNA that many of their clients are referred via word of mouth and from a network of other advocacy groups or contact the foundation through its website and a toll-free phone number. Janus was referred to the foundation by the Liberty Justice Center, Semmens said.
What’s not clear is whether the groups start using more of that cash to represent private workers in legal battles over unions fees.
“I don’t think the Right to Work Committee is going to give up,” Liebman said. “On other hand, the labor movement has survived other legal challenges. They may have to work harder, but I have faith in the labor movement.”
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