High court strikes down fair-share fees for public workers

The Blade
By Jim Provance and Tyrel Linkhorn
June 27, 2018

COLUMBUS — In a decision that could have far-reaching effects on labor in Ohio and elsewhere, the U.S. Supreme Court on Wednesday voted 5-4 that public-sector workers who refuse to join unions cannot be forced to pay fair-share fees in lieu of dues.

“The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union,” Justice Samuel Alito wrote for the majority. “Employees must choose to support the union before anything is taken from them.

“Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay,” he wrote.

Fair-share fees were previously put to many of the same uses as traditional union dues, covering the costs of things such as bargaining contracts and defending employees embroiled in arbitration. A 1977 Supreme Court ruling had already prohibited money collected from non-members being used for political purposes, including financial contributions to candidates.

But ruling on a case brought by Mark Janus, an Illinois a child support employee who sued the American Federation of State, County and Municipal Employees over the practice on First Amendment grounds, the majority said that prior decision is unworkable.

Labor law experts say the ruling will have little impact in states such as Michigan, which have already passed so-called right-to-work laws that prohibit unions from collecting any fees from non-members. But in states such as Ohio, which have not enacted those laws, the decision could usher in a sea change. 

“This will make a big and fairly immediate difference to the resources of public sector unions in Ohio and states like it,” said Joseph Slater, a University of Toledo law professor who specializes in labor law. “It’s going to be a big punch to the gut to unions here for lack of a better term.”

Unions, their supporters, and indeed many experts, say the challenge facing public-sector unions going forward is that they will still be required to represent the interests of all workers within their unit, even those who elect not to join and pay dues.

“Legally they don’t just provide services to members, they provide services to everyone in the unit. Workers who aren’t members get the benefit of unionization. That’s a cost to the union. And now workers can’t be required to pay for it,” said Heidi Shierholz, a former chief economist at the U.S. Labor Department who is currently director of policy at the left-leaning Economic Policy Institute

“When workers can choose not to pay for something they may otherwise get for free, many of them — surprise surprise — will chose not to pay for something, even if they value it. Because they get it for free anyway,” she said.

Though its difficult to say with certainty what will happen going forward, Mr. Slater said states that enacted right-to-work legislation have generally seen about 30 percent of of union members stop paying dues and drop out of the union.

The decision was cheered by conservative groups, who said it fixed what had been an unfair system, and condemned by the nation’s largest unions, who argued the ruling was a direct attack by wealthy donors on the labor movement itself.

“This decision comes just as millions of workers across the country are recommitting to unions with new organizing drives and growing ranks in important sectors of our economy right here in Ohio. Public support for labor unions has risen to its highest level in years,” Ohio AFL-CIO President Tim Burga said in a statement. “The billionaires and corporate special interests that have manipulated our system of justice have succeeded in getting the highest court in the land to do their bidding. The labor movement, however, remains undeterred.”

In Toledo, Don Czerniak, president of Local 7, AFSCME, which is the city's largest union with over 800 members, said he had not yet read the Supreme Court ruling and was reluctant to comment on it or say how it might affect his members.

The national president of AFSCME, however, put out a statement calling the ruling an “unprecedented and nefarious political attack” that was designed to harm working people. The United Auto Workers, the United Steelworkers, and others issued similar statements that both lambasted the decision and struck a defiant tone.

Robert Alt, the president and chief executive officer of the conservative Ohio-based Buckeye Institute, said concerns of the labor movement imploding are overblown and that it’s everyday workers, not millionaires and billionaires, who stand to benefit.

“I’ve spoken with hundreds of union workers across the country who are dissatisfied by being forced to subsidise speech with which they disagree. The winners in this case are the workers. They have a choice and that choice has to be respected,” he said.

“If you are a private employee it doesn’t mean anything. It doesn’t cover private unions. If you’re a public employee and covered by a union and you like your union, it doesn’t mean a lot. You can keep your union,” Mr. Alt said.

The ruling accomplishes in Ohio what Gov. John Kasich and legislative Republicans could not. Elimination of fair-share fees for public workers had been included in Senate Bill 5, a broad-reaching law that, among many other things, also would have limited the ability of public employees to strike, restricted what could be on the bargaining table, and prohibited local governments from paying any portion of an employee’s share of pension contributions.

But Ohioans in 2011 kept fair-share fees for public workers alive when they overwhelmingly voted to repeal Senate Bill 5.

In Ohio, Republican lawmakers have continued to try to get rid of the fees through proposals that would have Ohio join 28 states, including its neighbors with the exception of Pennsylvania, as right-to-work states. So far none of those measures have moved.

Though the court’s decision on Wednesday applies only to public sector unions, many experts believe it will likely have a spillover effect on private sector unions. Many of the most well-known private sector unions, including the UAW and the USW, represent a number of public sector employees. If those employees choose not to pay dues, union finances will suffer.

UAW Local 12, for example, represents employees of the Lucas County auditor and treasurer's office, the county's 911 Emergency Medical Services, and the sheriff command officers. A separate UAW unit, Local 3056, represents sheriff's deputies.

Justice Elena Kagan was joined by the three other liberal justices on the bench in a dissent that argued the decision would have large scale negative consequences.

“Public employee unions will lose a secure source of financial support," she wrote. “State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.”