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8 things you should know about the US Supreme Court case: Janus vs AFSCME

05 March 2018
And why it may represent one of the biggest attacks on trade union rights in recent decades.

It's the biggest labour case of the 21st century, according to the Washington Post.

The US Supreme Court's decision on Janus vs AFSCME will have a huge impact in the way public sector unions operate. The high court heard oral arguments on February 26 and will decide about the case by the end of June.

Here are 8 things you need to know about it:

 

1. What exactly will the US Supreme Court decide?

The high court will decide whether public employees will still be obligated to pay “agency fees” to cover the collective-bargaining costs of unions that represent them, even if the employees are not members of the union. At issue are rules in 22 states of the United States.

 

2. Why is this fee mandatory?

A union is usually the legal representative for collective bargaining and is required by law to represent and negotiate on behalf of all workers. These workers are not required to be a member of the union, but because all of them receive the wage increases, benefits and workplace rights that the union negotiates, it is fair that everyone contributes to this cost of representation. The payment of this agency fee doesn’t make the worker compulsorily a member of the union.

As the New York City Municipal Labor Council argues in an Amicus Curiae brief for the US Supreme Court:

“The simple truth is that someone must contribute to permit the union to perform its job and if all who benefit cannot be required to contribute, union members would be forced to carry the weight on their backs, subsidizing those who free-ride.”

 

3. Is this currently legally enforced?

Yes. In an unanimous decision on the case Abood vs Detroit Board Of Education, during the 1970’s, the US Supreme Court upheld agency fees.


4. What exactly is the Janus vs AFSCME case?

Mark Janus, an Illinois state worker who declined to join PSI’s affiliate American Federation of State, County, and Municipal Employees (AFSCME), argues that the payments he's compelled to pay AFSCME violate his First Amendment rights, which guarantee freedom of speech. According to this argument, fees required from workers towards collective-bargaining amount to a form of compelled political “speech." From this point of view, collective bargaining and political lobbying are indistinguishable. As written in an article published in “The Nation”:

“The case turns on the assumption that, whether you’re a teacher seeking smaller classes or a retiree seeking decent health care, the Court will essentially treat your union’s contract demands as ideologically lobbying your government.” 


5. But... is it really about the First Amendment and an unhappy public-sector employee?

Of course not. Unions, workers, economists, congressmen, civil rights groups and even mayors and state and local public employers consider Janus vs AFSCME a major assault on labour and part of a broader campaign against public-sector unions that seeks to undermine their financial and institutional structure. It is not a coincidence that this is the third case to come before the Supreme Court in five years involving the agency fees collected by the public-sector unions.

As a New York Times story published on February 25 tell us, this campaign is “backed by some of the biggest donors on the right”

A report launched on February 21 by the Economic Policy Institute (EPI) – “a nonprofit, nonpartisan think tank created in 1986 to include the needs of low and middle-income workers in economic policy discussions” – shows that Janus vs AFSCME and the two cases that preceded it in the US Supreme Court “did not grow from an organic, grassroots challenge to union representation”:

“Rather, the fair share cases are being financed by a small group of foundations with ties to the largest and most powerful corporate lobbies. These organizations and the policymakers they support have succeeded in advancing a policy agenda that weakens the bargaining power of workers. In Janus, these interests have focused their attack on public-sector workers – the workforce with the highest union density.”

EPI’s researchers created a database of financial transactions of organizations involved in these agency fees cases. The conclusion is that:

“What is clear is that a core group of foundations with ties to the largest and most powerful lobbies representing corporate interests have provided consistent financial support for the fair share fee cases.”

Behind the Janus vs AFSCME case are organizations like the National Right to Work Legal Defense Foundation (NRTWLDF) and the Liberty Justice Center (LJC), that represented the plaintiffs. EPI’s report reveals that both organizations are financed by the exact same foundations: Donors Trust, Lynde and Harry Bradley Foundation, Ed Uihlein Family Foundation, and Dunn’s Foundation for the Advancement of Right Thinking. In addition, NRTWLDF also received funds from the Walton Family Foundation, and LJC was also financed by the Charles Koch Institute.

These foundations share, according to EPI, “conservative interests that seek to undercut private-sector unions by lobbying states to pass laws that ban any requirements that workers pay fair share fees”. These laws are already enforced in 28 American states, and are based on the so-called “right-to-work” concept


6. By the way… does the agency fee really violate the First Amendment?

No. Unions and its supporters argue that there is a clear and legal line that separates political lobbying and activities related to negotiation processes regarding workplace issues. Therefore, the argument that agency fees violate the First Amendment is “based on a faulty premise”, say David Cole and Amanda Shanor in an article published on February 23 in The Nation. 

“Because the agency fees merely cover the cost of services rendered (...), they do not violate the First Amendment so long as they are not expended on the union’s ideological speech.”

The authors state that agency fees protect both union and nonunion workers interests:

“It protects the associational interests of public employees who do not join a union by ensuring that they need not subsidize ideological speech with which they disagree. But at the same time, it protects the associational interests of those who do join unions by ensuring that they do not have to subsidize workplace services that benefit nonunion workers.”


7. What can be the impacts of a US Supreme Court decision in favor of Janus?

A Supreme Court decision in favor of Janus could significantly affect the operations of public unions and weaken the power of collective bargaining. An Economic Policy Institute (EPI) report released on October of 2015 revealed that public-sector employees in states with full collective-bargaining rights earned more than their counterparts in “right-to-work” states.

Black workers – more specifically, black women workers – would be the most affected population group. On August of 2016, the Center for Economic and Policy Research (CEPR) released a study that shows that black union workers enjoy higher wages (an average of 16.4% higher) and better access to health insurance and retirement benefits than their non-union peers. According to the paper, the large decline in unionization in the last few decades in the United States has “contributed to an increase in overall wage inequality, as well as the widening Black-white wage gap”. The study also finds that today these black unions workers are more likely to be female, older, immigrants and work in the public sector.


8. How PSI is supporting the American unions?

Public Services International is calling for solidarity with the American unions who are facing “the biggest anti-union legal move in half a century”. PSI’s U.S. affiliates prepared Amicus Curiae briefs for the Supreme Court showing how fair share fees are central to an efficient and effective public sector. (You can click here to see all the Amicus Curiae briefs filed with the Court). On February 24, they participated in the Working People’s Day of Action, when thousands of union workers gathered all over the United States to chant, cheer and wave signs against the attack on organized labour represented by Janus vs AFSCME. 

On February 8, PSI General Secretary Rosa Pavanelli chaired a video conference with union leaders from across the world to address the issue.

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