Will Unions See The Tap Run Dry?

By Owen Voutsinas-Klose
Owen Voutsinas-Klose is a freshman at the University of Pennsylvania

In one of the most closely watched cases of the current Supreme Court term, Janus v. AFSCME, newly minted Justice Neil Gorsuch is expected to deliver a significant blow to public sector unions by ruling, along with the conservative wing of the court, that mandatory public union dues are unconstitutional.  

The case, brought by Illinois state employee Mark Janus against his union, centers around “fair share fees”, also known as agency fees.  The Supreme Court ruled in a 1977 decision known as Abood v. Detroit Board of Education that public sector non-union members can be forced to pay agency fees in lieu of dues to cover the union’s cost of negotiating a contract that benefits all employees.  While non-union members cannot be forced to subsidize political activity, the challengers in Janus contend that forcing a public sector employee to subsidize a contract negotiation as a condition for employment violates their right to free speech under the First Amendment. Unions and their allies meanwhile defend the unanimous 1977 Abood decision, and its contention that reasonable payments in lieu of dues to recuperate costs of negotiation, so long as the dues do not go to explicitly political purposes, are allowed.
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This is the second time in the last year that the court has heard a challenge to Abood.  In 2016, the court looked ready to strike down Abood in the case of Friedrichs v. California Teachers Association, but the sudden death of Justice Antonin Scalia resulted in a deadlock that left the issue unsettled.  However, the appointment of Justice Neil Gorsuch to the court likely signals the end of Abood, giving anti-union activists their best shot yet at overturning it.  In recent years, the court’s conservatives have taken a fresh look at overturning Abood, with Justice Samuel Alito in 2014 calling the decision “questionable,” and writing that it is a “bedrock principle” that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”[1]

Without mandatory agency fees, unions will grapple with a massive free rider problem, meaning that employees could now benefit from union contracts without being compelled to pay dues to support the union.  Labor experts predict a mass exodus of employees from union rolls, now without any incentive to stay. The recent promulgation of right-to-work laws, whereby payment of union dues cannot be a condition of employment, has reduced union rolls to their lowest numbers of the modern era.  Public sector union membership, at 34.5%, is significantly higher than the private sector number of 6.5%.  But it has dropped by 8% since 2000, and would decline even more significantly if Janus v. AFSCME makes all states effectively “right-to-work” for public sector employees. [2]

Unions are already reacting to this potentially dramatic loss of revenue by making changes in their budgeting and political strategy.  For example, New York’s United Federation of Teachers (UFT) is planning a massive cut to its $156 million a year budget, anticipating the ruling and predicting that 20-30% of its teachers will quit the membership rolls.  If Janus is successful, the UFT would now have to get written consent from each member in order to deduct the dues, an arduous process that has wreaked financial havoc on unions in similar situations. For example, the NY Transportation Workers Union had automatic dues collection suspended for 17 months in 2015 and 2016 after an illegal strike, and lost millions in revenue after workers no longer were compelled to pay dues. [3]

An analysis by the Huffington Post found that organized labor spent a whopping $1.7 Billion during the 2012 election cycle, much of it from public employee unions.  Strapped for cash, the public unions such as AFSCME that play a key role in politics in all fifty states, particularly Democratic-leaning ones, will be dramatically curtailed. [4]  Janus v. AFSCME represents one of the first tangible examples of the 2016 election result on the Supreme Court, and will have far reaching implications by reducing the political might of public employee unions and their bargaining power on issues such as school reform, pensions and taxes.  
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[1] Savage, David G. "Supreme Court poised to deal a sharp blow to unions for teachers and public employees." Los Angeles Times. September 28, 2017. Accessed October 10, 2017. http://www.latimes.com/politics/la-na-pol-court-unions-20170928-story.html
[2] Barrett, Katherine, and Richard Greene. "How Unions Are Already Gearing Up for a Supreme Court Loss." Governing magazine: State and local government news for America's leaders. October 5, 2017. Accessed October 10, 2017. http://www.governing.com/topics/mgmt/gov-janus-afscme-right-to-work-states-unions.html.
[3] Campanile, Carl. "UFT may have to dramatically slash $182M budget." New York Post. September 05, 2017. Accessed October 12, 2017. http://nypost.com/2017/09/04/uft-may-have-to-dramatically-slash-182m-budget/.
[4] Howe, Amy. "Will the third time be the charm for challenge to public-sector union fees?" SCOTUSblog. June 09, 2017. Accessed October 12, 2017. http://www.scotusblog.com/2017/06/will-third-time-charm-challenge-public-sector-union-fees/
Photo Credit: Flickr User/Fibonacci Blue 

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.



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