On June 6, the same anti-worker
groups who brought a 2015 California union-busting case to the Supreme Court
petitioned the justices to weigh in on an eerily similar case, this time out of
Illinois. At issue – again – is whether public employees can be compelled to
pay “fair share” fees to a union to cover the costs of collective bargaining
and representation performed on their behalf.
Plaintiffs lawyers in Janus v. the American Federation of State, County and Municipal Employees – the same National Right-to-Work Foundation attorneys who argued the Friedrichs v. California Teachers Association case before the court in January 2016 – practically begged lower court justices to rule against them in an attempt to speed their case directly to the high court.
In the case of Friedrichs, the effort nearly succeeded. During oral arguments, justices seemed ready to side with the anti-union, corporate-backed plaintiffs, but Associate Justice Antonin Scalia’s death in February left the court split 4-4 along ideological lines, unable to render a definitive verdict.
The reprieve for public-sector unions – including the IBEW, which represents tens of thousands of public employees – was temporary. With Donald Trump’s election last November and the appointment of Associate Justice Neil Gorsuch to fill Scalia’s seat, this second attempt to strike directly at organized labor’s finances looks likely to succeed when the case eventually comes before the court later this year.
“We know where the eight previous justices stood after Friedrichs, and this is essentially the same case,” said Austin Keyser, the director of the IBEW’s Political and Legislative Affairs Department. “We don’t know for certain where Justice Gorsuch will fall on this issue, but his background doesn’t give me a lot of confidence that he’ll stick his neck out for working people. If he goes against us, we’re left with another painful reminder that elections have serious consequences.”
“Fair share” fees, which have long been protected under a 1977 Supreme Court decision called Abood v. Detroit Board of Education, are payments collected from non-members in a union shop that help to cover services related to collective bargaining or workplace representation. Lawyers to review contract language, for example, or a union official’s time spent filing a grievance or defending a non-member against disciplinary action are expenses that would be covered by these fees. By law, workers cannot be required to pay for the political activities of a union, and electing not to be a member of the unions allows a person to opt out of that portion of dues.
“Fair share fees are a simple way of making sure everyone contributes to the collective effort of employees in a workplace,” Keyser said. “Asking people to pay for a service they’re receiving shouldn’t be controversial, but these anti-union groups’ goal is to destroy the labor movement, and attacking our ability to provide collective bargaining services is their plan of attack.”
The 1935 National Labor Relations Act requires unions to represent every person in a union shop, regardless of whether they’re full dues-paying members. “Fair share” fees are a way to make sure everyone contributes to that representation.
In right-to-work states – there are now 28 of them – all bargaining unit employees can opt out of not only membership, but any fees altogether, while still receiving the benefits of a negotiated contract and union representation in disciplinary matters. This creates a “free-rider” problem, where members of a union pick up the slack for co-workers who choose not to contribute, which could eventually bleed a union’s resources dry.
“These attacks on unions tend to start with public workers, but they never end with public workers,” said Government Employees Department Director Paul O’Connor. “Every member of the IBEW or any other union should be concerned that they’re next if this succeeds. These big money, anti-union interest groups won’t stop until we’re out of their hair for good. And if we’re gone, who’s standing up for the American worker?”
Decisions on right-to-work used to be the job of states, Keyser said. “Politicians on the right like to talk a lot about states’ rights, but they also like to ignore those rights when it suits them.” Right-to-work has always been a state issue, he said, but when it comes to labor, anti-union elected officials seem prepared to throw out even their most solemn beliefs if it means organized labor is on the losing end.
The IBEW’s public sector workers who would be hurt by a ruling against labor work in public utilities, law enforcement, shipyards, government and more.
“Public workers already deal with enough,” O’Connor said, citing government shutdown threats, hiring freezes and regular political attacks. “Subjecting them to blanket right-to-work laws will further weaken their voice in the workplace and erode their ability to collectively negotiate fair contracts.”
“This pattern of attacking workers and the unions that represent them has been around at the state level for a long time,” Keyser said. “With Republicans in control of Congress, the White House and now the Supreme Court, I fear it’s only going to get worse.”
The real battle, Keyser said, comes in 2018 when working people have the chance to make their voices heard at the ballot box. “Winning back the House and the Senate are going to be key to slowing down the anti-union fever gripping the Republican Party right now. Until then, we’re at the whims of a majority that doesn’t seem to like us very much.”