An Illinois court case that challenges union “agency fees” for state employees will be heard this term by the U.S. Supreme Court. It is among 11 cases the high court added to its docket Thursday morning.
In Janus v. American Federation of State, County, and Municipal Employees, the lead plaintiff is Mark Janus, a child support specialist at the Illinois Department of Healthcare and Family Services. He’s represented pro bono in the case by attorneys from the National Right to Work Foundation and the Illinois-based Liberty Justice Center.
In a commentary in the Chicago Tribune in January 2016, Janus wrote, “To keep my job at the state, I have to pay monthly fees to the American Federation of State, County and Municipal Employees, or AFSCME, a public employee union that claims to ‘represent’ me.”
That was shortly before a similar case from California went up for oral arguments before the high court – which deadlocked 4-4 in March 2016 due to the vacancy left by the death of Justice Antonin Scalia.
In the private sector, most labor contracts include clauses that require all workers whose jobs are covered by the contract to become members of the union and pay dues. In some public sector union contracts, covered workers may not be required to become full members of the union but they may be charged “agency fees” -- also called "fair share" fees -- intended to cover the costs of negotiating for and supporting the workers.
Following acceptance of the case, Amy Howe wrote in scotusblog.com, “In 1977, in Abood v. Detroit Board of Education, the Supreme Court ruled that, even if they cannot be required to pay fees that a union would use for political activity, like union organizing, public-sector employees can be required to pay a fee to cover the costs of contract negotiations.
“But Janus argued that even requiring him to pay the more limited fee violates his First Amendment rights because issues related to contract negotiations – like salaries, pensions and benefits for government employees – are inherently political. Therefore, he contends, his fee is going to support speech that is intended to affect the government’s policies, even if he disagrees with it.”
That argument was rejected by the U.S. Court of Appeals for the 7th Circuit, which held that it lacked the power to overrule the Supreme Court’s Abood ruling. The attorneys for Janus argued that the Supreme Court does have that power, which led to today's acceptance of the case.
Illinois Gov. Bruce Rauner, who has pushed a pro-business agenda from his first day as a candidate, has made no secret of his anti-union position regarding state employees.
“No person should be forced to give up a portion of their pay each month to fund public sector union activity against their will,” he said in a statement issued by his office today. “It’s a fundamental violation of their First Amendment right to free speech and association. I am hopeful the Court will see it that way in the end.”
Rauner's statement called the Supreme Court’s agreement to hear the case “an important first step toward ending the unconstitutional practice of dipping into the paychecks of hardworking State employees and forcing them to pay into the union coffers, even if they are not members of the union.”
Leaders from several unions which represent public-sector workers issued a joint statement which called the Janus case “a blatantly political and well-funded plot to use the highest court in the land to further rig the economic rules against everyday working people.”
Roberta Lynch, executive director of AFSCME Council 31 offered this view of the case in a commentary for the Springfield State Journal-Register earlier this year:
“Under current law, every union-represented teacher, police officer, caregiver or other public service worker may choose whether or not to join the union — but the union is required to negotiate on behalf of all workers whether they join or not,” she wrote. “Since all the workers benefit from the union’s gains, it’s only fair that everyone chip in toward the cost. That’s why 40 years ago a unanimous Supreme Court approved the kind of cost-sharing arrangements known as fair share.
“The Janus v. AFSCME case is an effort by powerful corporate interests to outlaw fair share. … It actually began as a political scheme by Gov. Bruce Rauner, who shortly after taking office issued an executive order and filed a lawsuit trying to ban fair-share fees.”
Mark Mix, president of the National Right to Work Legal Defense Foundation, also praised the court’s action in a statement:
“With the Supreme Court agreeing to hear the Janus case,” he wrote, “we are now one step closer to freeing over 5 million public sector teachers, police officers, firefighters, and other employees from the injustice of being forced to subsidize a union as a condition of working for their own government.”
Jacob Huebert, director of litigation at the Liberty Justice Center, sees the case as “an opportunity to restore fairness and First Amendment rights” to union workers.
“Right now, public sector employees in Illinois and many other states aren’t given a choice,” he said in a statement. “They’re automatically forced to give their money to a union.”
The Associated Press says that, with a conservative majority on the Supreme Court, the Janus case has "the potential to financially cripple Democratic-leaning labor unions that represent government workers."
The case probably will be argued in early 2018, with a decision issued before the court adjourns at the end of its term in June.