In a blow to unions, government workers no longer have to pay ‘fair share’ fees

WASHINGTON — The Supreme Court — delivering a victory to GOP Gov. Bruce Rauner and a blow to organized labor in the landmark Illinois case Janus v. AFSCME Council 31 — ruled Wednesday that non-union member government employees’ First Amendment rights shield them from having to pay fees to a union to cover costs to represent them.

Rauner, who flew to Washington on Sunday to await the Supreme Court decision, was in the chamber on Wednesday. Rauner, in a tough re-election campaign against Democrat J.B. Pritzker, has crusaded against the Democratic-allied Illinois government employee unions since taking office.

The 5-4 decision overturning current law was written by Justice Samuel Alito who said in the 83-page ruling — with national impact — that “States and public-sector unions may no longer extract agency fees from nonconsenting employees.”

And on the free speech issue, a crucial legal underpinning to the case, the court majority in striking down the current payment system said, “We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

President Donald Trump immediately tweeted about the decision, writing, “Big loss for the coffers of the Democrats!”

Pritzker said in a statement, he was “appalled” by the ruling.

The government unions, most Democratic allied, face a loss of revenues, membership and potential shrinkage in local and national political power.

The justices aligned on ideological lines.

Joining in the majority were Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Alito and Neil Gorsuch, all appointed by Republican presidents.

Joining in the minority were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, all nominated by Democratic presidents.

Gorsuch, on the Supreme Court since April 2017, provided the deciding vote.

Rauner filed the case on Feb. 9, 2015, a few weeks after taking office, replacing Democratic Gov. Pat Quinn. A few weeks later, a lower court judge ruled Rauner did not have standing to bring the case. Mark Janus, a child support specialist at the Illinois Department of Healthcare and Family Services in Springfield was allowed to intervene and became the name plaintiff.

Janus was in the courtroom with Rauner when the Justices delivered the opinion.

The justices deadlocked in a 4-4 tie in a similar 2016 case, Friedrichs v. California Teachers Association, following the death of Justice Antonin Scalia and with his vacancy still unfilled.

The justices considered whether to overturn a 1977 Supreme Court opinion, Abood v. Detroit Board of Education that public employee unions could, without violating First Amendment free speech rights, collect “fair share” or “agency fees” since the unions have a legal obligation to represent all workers, whether or not they chose to be members.

In Wednesday’s opinion, the court wrote that “we recognize the importance of following precedent unless there are strong reasons for not doing so.”

“But there are very strong reasons in this case,” the court continued. “Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse.”

In 22 states, including Illinois, government workers can opt out of joining a union. However, they must pay a “fair share” fee to cover costs for representing them, excluding union political or lobbying expenses.

Though the Abood case cited the risk of “free riders” to justify those fees, the court noted Wednesday that Janus rejected that label.

“He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage,” the court wrote.”

Rauner, bargaining with AFSCME and intent on diluting the power of Democratic public sector unions, issued an executive order to state agencies to stop enforcing the fees paid by non-member government workers to unions. The same day, Rauner filed a federal lawsuit challenging the constitutionality of the fees.

A judge ruled Rauner did not have standing to bring the case. Mark Janus, a child support specialist at the Illinois Department of Healthcare and Family Services in Springfield and a state employee since 2007, was allowed by the court to be swapped in as the plaintiff.

View this document on ScribdJanus is represented at work by AFSCME Local 2600 but is not a member of the union. He pays a fee of about $47 each month to the union, about 78 percent of full union dues.

AFSCME Council 31 represents about 75,000 workers in Illinois; about 90 percent are union members and 10 percent fee payers.

In taking the case, the Supreme Court said the question is “should Abood be overruled and public sector agency fee arrangements declared unconstitutional under the First Amendment?”

Janus said in lower court pleadings that he “objects to many of the public-policy positions that AFSCME advocates for in collective bargaining and that the union engages in “one-side politicking.”

In the Supreme Court brief the Janus legal team said, “Janus and other employees subject to AFSCME’s representation are required to subsidize the advocacy group’s efforts to compel the State to bend to its will.”

Eventually, Attorney General Lisa Madigan was brought into the case, with the Democrat defending AFSCME putting her at odds with Republican Rauner. Both were at the Supreme Court for oral arguments Feb. 26.

Madigan argued in her brief that the Janus is making “radically over broad constitutional claims” seeking “to invalidate all public-sector agency fees on the theory that everything a public employee union does — right down to the the most most picayune workplace grievance — is political speech in a public forum. That is not an accurate view of the world.”

AFSCME, argued in its brief that “as originally understood, the First Amendment’s protection against laws ‘abridging the freedom of speech’ did not extend to all speech, citing “Justice Holmes formulation, a public employee ‘may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

On the free speech issue, the AFSCME brief argues, “agency fees pass First Amendment muster because they prevent free-riding, support workplace fairness and maintain labor peace.”

Since the unions must represent everyone, the AFSMCE brief said, “the suggestion that collective bargaining is no different from political lobbying cannot be squared with the fact that state law literally requires bargaining to set employment terms.”

As for everything a union does being political, the AFSCME brief disputed that assertion in arguing, “many collective-bargaining topics are (about) mundane employment conditions . . . generally do not raise matters of public concern, yet consume significant union resources.”

As “public citizens” government employees can “express disagreement with the union in public meetings, newspaper editorials, or any other public forum.”

The Janus legal team includes the National Right to Work Legal Defense Foundation and the Liberty Justice Center based in Chicago. The Janus case is the biggest for the Liberty Justice Center since it was founded in 2011.

The Janus case, with its enormous national potential ramifications for the labor movement in the U.S., which tilts Democratic, was funded in part by a network of conservative groups and Republican mega donors. The National Right to Work Legal Defense Foundation has been challenging “fair share” fees in courts for years.

The timeline details the legal and political events and turning points leading to Janus, providing the context for how one of the most significant labor law cases of the decade ended up in front of the Supreme Court.

The Janus Timeline

The Janus battle did not come out of the blue.

Since 1977, there have been a series of Supreme Court cases dealing with “fair share” or “agency fee” payments. The challenges have been pursued by GOP-leaning conservative legal teams against Democratic allied public sector unions, among the most liberal and politically active in the organized labor family.

May 23, 1977 — The Supreme Court established the current law in Abood v. Detroit Board of Education, allowing the collection of fees from union non-members for contract related costs, excluding lobbying and political expenses.

June 30, 2014 — In Harris v. Quinn, an Illinois case, the Supreme Court chips away at Abood during Gov. Patrick Quinn’s watch.

The court found home health care workers represented by the Service Employees International Union (SEIU) were not full public employees covered by Abood.

Jan. 12, 2015 — Republican Rauner takes office, replacing Democrat Quinn.

Feb. 9, 2015 — Rauner issues an executive order directing the state to suspend deducting “fair share” fees from paychecks and sending the money to the unions. On same day, he files a federal lawsuit in Chicago challenging the constitutionality of the law allowing “fair share” fee collections.

March 23, 2015: Motion to intervene by Janus and two other state employees.

May 19, 2015: Rauner tossed from case; Janus and the two others allowed to intervene.

June 6, 2017: Janus, by now the remaining plaintiff, petitions to the U.S. Supreme Court.

Feb. 13, 2016 — Justice Antonin Scalia dies. Senate Republicans block the replacement nominated by President Barack Obama, Merrick Garland.

March 29, 2016 — The Supreme Court deadlocks on a “fair share” case, Friedrichs v. California Teachers Association. With the Scalia vacancy, the court at 4-4, leaves Abood intact.

Sept. 13, 2016 — U.S. District Court Judge Robert Gettleman, sitting in Chicago, dismisses the Rauner/Janus case.

March 21, 2017 — With Attorney General Lisa Madigan now also a defendant, a Seventh Circuit Court of Appeals panel – Richard Posner, Diane Sykes and David Hamilton — affirms the district court was correct in dismissing the Rauner/Janus complaint.

April 7, 2017 — The Senate confirms President Donald Trump’s first Supreme Court pick: Gorsuch.

Sept. 28, 2017 — With a full nine-justice bench, the Supreme Court agrees to consider the Janus case.

Feb. 26, 2018 — Supreme Court oral argument

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• Who is Mark Janus?

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• Janus v. AFSCME: Rauner, Lisa Madigan and the Illinois case at the Supreme Court

• Collective action is unions’ last defense – and high court on verge of ending it

• Unions rally in Loop over ‘fair share’ case being heard before Supreme Court

• Gorsuch deciding vote in key labor union funding case with Illinois roots

• Trump administration takes Rauner’s side in ‘fair share’ case

• Supreme Court to hear challenge to unions

• Rauner happy with court’s fair-share review; AFSCME critical

• Judge allows union-fee suit to proceed — without Rauner

• 3 state employees want to join Rauner lawsuit over ‘fair share’ union fees

OPINION

• Janus case is part of continuing attack on workers

• Union ‘fair share’ fees protect all workers without infringing on free speech

DISCLOSURE NOTE: Some unions have ownership stakes in Sun-Times Media, including the Chicago Federation of Labor; Operating Engineers Local 150; SEIU Healthcare Illinois-Indiana and SEIU Local 1.