A right-to-work advocacy group, renewing a long-running fight over labor union support fees assessed from non-union workers, asked the Supreme Court on Tuesday to strike down the charges as unconstitutional, when imposed on workers in government jobs.
That is the issue that split the court 4-to-4 in March of last year, when there were only eight Justices following the death of Justice Antonin Scalia.
If the Justices grant review of the new case, coming from Illinois, and if none of those eight changed their minds, a tie-breaking vote would be held by Justice Neil M. Gorsuch, who just joined the bench this term.
A five-Justice majority of the court, for several years, has expressed skepticism about the constitutionality of so-called “agency fees” assessed for non-union workers in the public sector.
Although such fees are allowed only to cover the costs of union bargaining for benefits and working conditions for all of the workers the unions represent and not for union political or lobbying activity, the argument has been that everything a public-sector union does in dealing with the government is a form of speech on public issues – that is, an attempt to influence public policy. If a non-union member does not share the views of the union, even on representation issues, the theory is that the worker’s free-speech rights under the First Amendment have been violated.
That is the argument pressed in the new petition, in the case of Janus v. American Federation of State, County, and Municipal Employees Council 31. It contends that “millions of public employees are subject to agency fee requirements that compel them to subsidize the speech of a third party that they may not wish to support. This significantly impinges on the First Amendment rights of each and every employee who did not choose to subsidize the union’s advocacy.”
The new appeal, filed by lawyers with the National Right to Work Legal Defense Foundation, said that there are more than 8 million public-sector workers nationwide who are represented on the job by a union. It said that such workers have protection against “agency fees” in 28 states that have a “right to work” law that outlaws agency fees, but not in the other 22 that lack such laws.
At the center of this ongoing controversy is a 1977 Supreme Court ruling, in the case of Abood v. Detroit Board of Education. That decision rejected a constitutional challenge to agency fees. And right-to-work advocates have been waging an increasingly energetic campaign to try to get that decision overruled. That, of course, can only be done by the Supreme Court, so these organizations have been maneuvering to get a new test case before the Justices.
That is what had happened when the Justices agreed, two years ago this month, to review the case of Friedrichs v. California Teachers Association. The main issue was whether the Abood ruling would be overturned.
The case had been started by non-union teachers specifically to test that precedent, and it had been rushed through the lower courts, because they had to follow the Abood precedent. The Justices held a hearing on it in January of last year, but within less than two months, Justice Scalia had died. The eight other Justices split evenly in the decision, which settled nothing and left the Abood precedent intact.
The new case that has now reached the court is similar. It involves Mark Janus, an employee of the Illinois state government. He does not belong to the public employee union local that represents him and others, but he and other non-members are assessed agency fees that are said to represent about 78 percent of full union dues.
In early 2015, before the Supreme Court had taken on the Friedrichs case, Janus and two other non-union state employees entered an existing lawsuit that had been filed by the state’s governor, who later dropped out of the case. The workers contended that the duty to pay agency fees violated their First Amendment rights. Both a federal trial court and the U.S. Court of Appeals for the Seventh Circuit dismissed the lawsuit, relying on the Abood decision. Two of the other state employees dropped out of the case, but Janus remained, to take the case on to the Supreme Court with a specific request that the 1977 precedent be overruled.
It would take the votes of only four Justices to grant review, and that seems likely to happen, if there is no technical flaw in the Janus case. Five votes would be necessary to strike down agency fees for public workers.
Janus’s lawyers contend that his case provides a solid test of the issue, for three reasons: the Illinois labor law specifically authorizes agency fees for public employees, the union that represents him uses an unclear formula to determine how much the fee will be, and the bargaining that the union has done with the state government makes it clear that that activity bears directly on public policy issues such as the impact of union demands on state budgets.
In a separate new appeal to the Justices, in another Illinois case that also was filed on Tuesday, the same right-to-work advocacy organization asked the court to rule that it is unconstitutional for a state to compel in-home personal care workers who are not state employees to accept a labor organization as their exclusive representative with the state in bargaining over public policies affecting those workers.
The new case of Hill v. Service Employees International Union, is an attempt to build upon a victory that such workers gained in the Supreme Court three years ago. By a 5-to-4 vote, the court ruled in the case of Harris v. Quinn that such workers could not be required to pay agency fees without violating the First Amendment.
That case did not involve the issue of mandatory union representation for home-care workers. At the time of that decision, Justice Scalia voted with the majority. The other eight Justices apparently split as they would later do in the split ruling in the Friedrichs case (how each Justice votes is not disclosed when there is an even split to end a case).
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
