AFSCME, Illinois, allies defend agency fees in High Court briefs

WASHINGTON—Facing an expected hostile majority of GOP-confirmed U.S. Supreme Court justices, AFSCME, the state of Illinois and their allies are nonetheless vigorously defending “agency fees” unions can collect, when state law allows, from non-members whom they represent on the job.

But many unions defending the fees also anticipate a 5-4 vote to kill them. That tally would make every state and local government worker nationwide a potential “free rider” and all those workplaces into the equivalent of so-called “right-to-work” sites. And that could cause a big drop in revenues unions use to defend workers.

The unions are offering the justices a variety of reasons to uphold the fees in their briefs, filed in late January, in the case of Janus v AFSCME District Council 31, the union’s Illinois state council. The justices will hear oral arguments on it on Feb. 26.

Their explanations range from noting the U.S. Constitution’s framers originally did not extend any free speech rights to government workers to ensuring smooth functioning of labor-management relations to state sovereignty over its relations with its own workers.

Dissenting Illinois child welfare workers Mark Janus, Marie Quigley and Bryan Trygg, challenge that on constitutional grounds.  They’re picked, backed and funded by the radical right anti-worker, anti-union National Right to Work Legal Defense Fund. They want the court to bounce an Illinois law – and laws in other states – which say unions representing objectors like them can collect “agency fees” for basic bargaining and grievances. “Agency fees” are less than union dues, and unions must justify the figures.

Janus and his backers argue the fees violate workers’ 1st Amendment free speech rights. They call everything any union does “political lobbying” and say free speech means they don’t have to support it, by mouth or by money. Janus and the RTW crowd want the fees tossed out, defunding unions. Estimates of the losses run into the millions, though neither side offered dollar figures in its briefs.

Unions already collect agency fees from thousands of free riders. The latest federal union density calculations show unions represented 218,000 non-member state workers in 2017, and 2.371 million state workers overall. Unions also represented 358,000 non-member local government workers and 4.449 million local workers overall. But thousands in both groups are “free riders” in RTW states.

Forty-two years ago, the court said the fee collections are OK and don’t violate free speech rights.  But two years ago, the justices tied -4-4 on party lines on an identical challenge to the fees – and now Neil Gorsuch is the fifth GOP justice on the court, with an anti-worker record in lower court rulings.

And in another reversal of Obama administration policy, the GOP Trump administration’s Justice Department backs Janus. All this hasn’t stopped AFSCME and its allies from trying to change a GOP-named justice’s mind.

The older ruling, Abood v Detroit Board of Education, “accords with the 1st Amendment’s original meaning, which accorded public employees no curtailments of free speech in the workplace,” AFSCME said in its brief to the justices. That decision actually was a step forward for some workers, the union adds – at least those in non-RTW states.

Janus and his allies “ask the justices to upend the collective bargaining systems of many states… based on numerous unsupported and inaccurate assertions. For example, petitioner (Janus) claims all collective bargaining is inherently political and employees choose not to join unions because they object to bargaining positions. Those assertions are false and unsupported by an evidentiary record. This court’s jurisprudence should rest on evidence, not fiction.”

AFSCME and Illinois want the court to uphold Abood. The union said collecting the agency fees “is justified by the states’ strong interest in promoting labor peace through collective bargaining and avoiding the ‘free rider’ incentive” where “non-members can avoid paying any fees while retaining the benefits” of unions. But it also noted Abood said states couldn’t compel non-members to pay for expenses outside of bargaining, such as politics.

“Overruling Abood…is inconsistent with the 1st Amendment’s original meaning, which imposed no barrier to conditions on public employees’ free speech rights,” AFSCME said. “Deviating further from the framers’ original intent unjustifiably removes policy decisions involving management of public workforces from the democratic realm” where each state could make its own decisions – agency fees, right to work, banning unions, among them.

“The U.S. Constitution permits states to impose reasonable conditions on public employment,” Illinois Attorney General Lisa Madigan, agreeing with AFSCME, told the justices in her brief. Madigan, a Democrat, is defending the state law – the statute which sets agency fees as an employment condition – even though right-wing anti-worker GOP Gov. Bruce Rauner is trying to wreck the law and the union. Indeed, he first filed the Janus case, but lower courts threw him out of it, saying he wasn’t personally hurt. So the RTW crowd found Janus, Quigley and Trygg.

“The government may require payment of fees to support the activities of a mandatory association” – the union – “and agency fees are conditions of public employment that support the costs of a mandatory association” to bargain for and represent the workers, Madigan added.

Constitutional law professors, other states, five mayors and many other unions all filed friend-of-the-court briefs supporting AFSCME and Illinois. The mayors, including Bill deBlasio of New York, Eric Garcetti of Los Angeles and Rahm Emanuel of Chicago, seconded Madigan’s arguments. So did dozens of former state and local Republican lawmakers. The unions had other key points, including:

Firefighters Locals 1592 of Roseville, Calif., 3394 of Davis, Calif., and 13 other public safety organizations: Mandating fees for collective bargaining and contract administration enhances unity and attractiveness of public-safety officer jobs. Without union contracts – and the fees which help unions bargain them – police and fire departments pay inadequate wages and have trouble attracting applicants. Janus “treats the fair-share fee as if it were an exaction requiring him to subsidize another speaker’s views, such as those of the ACLU or the National Right to Life Committee. That is just wrong.”

Teamsters: The union hit the economic impact – on unions and on workers – of legions of free riders. “Unionization rates are much lower and free-riding is rampant without fair share arrangements. Some bargaining units aren’t viable” unless everybody pays a fair share. “Employee representatives are less effective” in such cases.

The Teamsters also said union foes “understand and exploit the logic of free-riding.” It noted a recent Iowa public worker law – passed, though the union did not say so, by the GOP-dominated legislature – forced all public-sector locals in the state to run for recertification, giving union foes a chance to unseat them. But 97 percent of all voting workers – and it was an absolute majority of all workers – voted union, even though in right-to-work-for-public-workers Iowa, only one-third are dues-paying members.

The Teamsters added a flyer from the right-wing Freedom Foundation’s campaign in the Pacific Northwest to get home care and child care workers to become “free riders” following a prior High Court ruling and predicted the right wing would launch similar campaigns nationwide if the court should rule for Janus and his free-rider arguments.

AFGE: The largest federal workers union – with 310,000 members and climbing – actually represents 700,000 federal workers. But under federal law, not only are federal shops “open” right-to-work shops, but federal worker unions can’t collect even agency “fair share” fees from free riders. “AFGE knows first-hand the difficulties a public-sector union faces when it cannot collect fair share fees and ‘free riders’ proliferate…AFGE has a strong interest in ensuring the current statutory bar on collecting fair share fees not be enshrined as a matter of constitutional law.”

Fire Fighters: “Fair share fees are necessary to fund essential health and safety protections for all bargaining unit members” – including dues-payers and fair share payers – “that IAFF affiliates (locals) are obligated by law to represent.”

Laborers:  After giving the justices an extensive history and description of how collective bargaining and grievances work, the Laborers – drawing on their own experience representing a group of Illinois public workers – told the justices that “collective bargaining is not lobbying,” though Janus and the RTW crowd claim it is. The two are so separate, the union said, that Illinois does not even require union reps for those public workers to register as lobbyists.

AFL-CIO: “Compelled subsidization of a private association that has been mandated to further a legitimate governmental interest” – good labor relations – “is not a form of compelled speech subject to heightened scrutiny” from the Supreme Court. Compelled speech precedents, where the court has outlawed forcing people to agree with speech they dislike, “applies only to compelled speech that is not germane to legitimate governmental interests.”

American Federation of Teachers: “Strict scrutiny” courts must give to overriding the 1st Amendment “only applies when the government burdens a worker’s right to lobby as a citizen outside his job. Fair share fees finance workplace speech, not lobbying, and therefore do not trigger strict scrutiny.”

National Education Association: The Supreme Court “has consistently applied a lower level of scrutiny when the government manages its own operations and deals with its own employees.” Janus’ “claim the government may only proscribe, not prescribe, workplace speech and association in employment reveals a fundamental disconnect with controlling law that affects the practical realities of government employment.”


Mark Gruenberg
Mark Gruenberg

Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of Press Associates Inc. (PAI), a union news service in Washington, D.C. that he has headed since 1999. Previously, he worked as Washington correspondent for the Ottaway News Service, as Port Jervis bureau chief for the Middletown, NY Times Herald Record, and as a researcher and writer for Congressional Quarterly. Mark obtained his BA in public policy from the University of Chicago and worked as the University of Chicago correspondent for the Chicago Daily News.