In a major blow to public sector labor unions, the U.S. Supreme Court has overturned 22 state laws requiring state employees pay them a representation fee, even if they aren’t members. While the decision could also overturn a new Washington law, the full impact to the state’s public policy is not yet known and could depend on what action if any is taken by either the state legislature or public unions themselves.
However, Washington Policy Center’s (WPC) Director for Worker Rights Erin Shannon told Lens that no matter what, Janus “represents a significant shift in what our political and policy landscape moving forward will look like.”
She adds that for public sector unions, “it’s a whole new business model.”
In a 5-4 ruling, the high court concluded in Janus v. American Federation of State, County and Municipal Employees (AFSCME) that non-union public employees could not be forced to pay an “agency fee” to unions for collective bargaining, because it violates their First Amendment right to free speech by compelling them to support a government entity. The ruling overturns a previous court decision Abood v. Detroit Board of Education in which agency fees could be collected.
The plaintiff Mark Janus is an Illinois state child support specialist who recently spoke at two WPC Policy Summits.
Cowriting for the majority opinion with Justice John Roberts, Justice Samuel Alito argued that “compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command (First Amendment), and in most contexts, any such effort would be universally condemned.”
In addition to Washington’s “agency fee” policy, the ruling also apparently overturns a new law approved this session by the legislature in anticipation of Janus creating an affirmative opt-out policy for workers who don’t want to pay union dues.
“Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay,” the majority opinion states. “By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.”
Freedom Foundation CEO Tom McCabe said in a statement that “nothing in this decision prevents workers from organizing or bargaining collectively if they choose to. It simply allows them to keep their jobs if they don’t. From now on, instead of just being handed someone else’s money, the unions will have to earn it. If they can’t survive without a government-enforced monopoly, they have only themselves to blame.”
Reaction to the decision from Washington state lawmakers varied from praise of the high court to warnings like that made by Governor Jay Inslee in a joint statement with Washington Attorney General Bob Ferguson that the ruling takes “us backwards to a time when workers had to resort to enormously disruptive strikes and walk-outs in order to make their voices heard. The reality is that all workers benefit from strong unions and their bargaining activities.”
A similar criticism of the decision was made by Sen. Guy Palumbo (D-1), who wrote in tweet that “it’s totally inconsistent law to allow for free riders but to then also compel unions to provide fair representation for all workers including free riders.”
“I am thankful for the public sector union job (janitor for the NYC board of education) that paid me $13.19 an hour + OT. It enabled me to help pay for my college education, coupled with federal school loans and my mother’s public sector union job,” he wrote in another tweet.
Meanwhile, Senate Minority Leader Mark Schoesler (R-9) wrote that as a result of Janus there will be “more pay staying with their families vs. going into union accounts. The next legislative session may see new proposals aimed at fairness and protection for state workers”
Those proposals could be aimed at two laws approved this year concerning worker’s rights. SB 6199 placed the state’s health care workers in the private sector so the private union could collect dues from those workers, while SB 6229 required public employers to let unions meet privately with new hires for least 30 minutes.
While Washington Federation of State Employees Executive Director Greg Devereux described the ruling as “an attack on the freedom of all working people,” Shannon says Janus has the potential to dramatically transform Washington’s public-sector union priorities regarding basic education, healthcare, tax policy and even political endorsements in order to attract and retain members.
“It doesn’t have to mean the death of any union,” she said. “Instead of pushing these agendas that really reflect the interests of the labor bosses…they can become more responsive to members.”