Supreme Court to hear case that could gut public sector unions
With the confirmation of Justice Neil Gorsuch, unions have a reason to be worried. | Pablo Martinez Monsivais/AP

The U.S. Supreme Court, last year, came close to throwing a sharp blow against public sector unions. The death of Justice Antonin Scalia gridlocked the court, and gave unions temporary relief.

That relief may soon end.

A new case was filed June 6, 2017, raising the same legal question: Should Abood v Detroit Board of Edu., 431 U.S. 209 (1977) be overruled and public-sector union agency fee arrangements declared unconstitutional under the First Amendment?

The court has already determined the issue at hand deserves the court’s attention, and with the confirmation of Justice Neil Gorsuch, unions have a reason to be worried.

If Justice Gorsuch votes with the court’s conservative members, which is a likely outcome, millions of government employees in over 20 states would be allowed to opt-out of paying for collective bargaining and representation.

Such a decision would have the effect of depleting public sector unions of funds, making them less powerful and effective at the negotiation table and in the workplace.

This petition is the latest attack in the decade long effort by conservative foundations to weaken, and destroy public sector unions.

What is Abood v. Detroit Board of Education?

In 1977, a group of unionized teachers filed a complaint against the board of education, the union, and union officials, challenging the legality of the agency shop clause in a collective bargaining agreement between the school board and union.

The complaint alleged that the teachers were unwilling or had refused to pay union dues, that they opposed collective bargaining in the public-sector, that the union was engaged in political and ideological activities that they did not approve, and were not related to representation or collective bargaining.

Their requested remedy was to declare the agency shop clause invalid under state law and the Constitution, as it deprived them of their freedom of association protected by the First and Fourteenth Amendments.

The trial court dismissed the case for “failure to state a claim upon which relief could be granted.”

The Michigan Court of Appeals upheld the constitutionality of the agency shop clause, but, recognized that the spending agency fee charges for political purposes unrelated to representation and collective bargaining could violate the First and Fourteenth Amendments.

A six-member majority Supreme Court rejected arguments that requiring employees to pay agency fees as a condition of employment violated the First Amendment. The Court ruled that the agency shop fee was constitutional, only “insofar as the service charges are applied to collective bargaining, contract administration, and grievance-adjustment procedures.”

The Court unanimously ruled that, “a union cannot constitutionally spend union objectors’ funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes.”

Janus v AFSCME Council 31

In the case currently before the Supreme Court, Mark Janus, an employee for the state government of Illinois and represented by AFSCME, Council 31, is suing the union, saying that he disagrees with the unions political positions and shouldn’t be forced to pay fair share fees [agency fees] to support the union’s work.

Janus is represented by the National Right to Work Legal Defense Fund.

However, the union argues that the narrow focus on the inconvenience to the individual worker could result in a decision that would effectively hobble the union’s ability to represent all workers in the workplace. “The corporate CEOs behind this case want to take away the freedom of working people to join together in a strong union and negotiate a fair return on their work,” AFSCME President Lee Saunders said in a statement.

“The rich and powerful interests behind this case are asking the Supreme Court to further rig the rules against working people and deny them the freedom to join together in a strong union to provide for their families, protect their communities and lift up the concerns of all working families.”

If the Supreme Court agrees with the challenge, it will overturn the 40-year precedent established by Abood, which found agency fees to be constitutional.

Unions, nationwide, say that the distinction between collective bargaining and political work makes sense.

Collective bargaining is different from spending on behalf of a political candidate, adding that non-members should not be entitled to the benefits a union contract provides without paying their fair share of the cost.

A date hasn’t been set to hear arguments in this latest attempt to bust public-sector unions, but this case will shine a light on Justice Gorsuch, who holds a deciding vote in a monumental question about the future of organized labor.


Al Neal
Al Neal

Award winning journalist Al Neal is PW associate editor for labor and politics. He is also the chief photographer for People's World. He is a member of the Chicago News Guild, Society of Professional Journalists, Professional Photographers of America, National Sports Media Association, and The Ernest Brooks Foundation.