California’s public employee unions were handed a serious blow in a Supreme Court ruling Wednesday that forbids them from collecting fees from workers who benefit from their representation but do not want to join them.
In a 5 to 4 ruling, the court determined that public sector unions' so-called "fair share" fees violate "the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern."
The decision in Janus vs. AFSCME effectively makes California a “right to work” state, ending a 41-year precedent that allowed public sector unions to levy these fees on workers who don’t belong to labor organizations.
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To unions, the fees ensured that employees don’t get a “free ride” by gaining raises and representation in workplace disputes without paying for those services.
But to critics inside and outside labor groups, the fees trampled the First Amendment rights of workers who believed the charges subsidized inherently political organizations that they opposed.
A majority on the Supreme Court sided with unions' critics. Writing for the five conservative justices, Justice Samuel Alito argued that forcing non-union members to pay even a portion of union dues amounts to compelled speech on significant policy issues. “In addition to affecting how public money is spent, union speech in collective bargaining addresses many other important matters,” Alito wrote, including “education, child welfare, healthcare, and minority rights, to name a few.”
Specifically, Alito singled out California’s own battles over teacher union fees, citing the Friedrichs v. California Teachers Association case that made many of the same arguments against “fair share fees.” After Justice Antonin Scalia's death in early 2016, a shorthanded Supreme Court split 4 to 4 on on Friedrichs, effectively punting the case and upholding a 9th Circuit Court of Appeals ruling that ruled in favor of the unions.
“Take the example of education, which was the focus of briefing and argument in Friedrichs,” Alito wrote. “The public importance of subsidized union speech is especially apparent in this field, since educators make up by far the largest category of state and local government employees, and education is typically the largest component of state and local government expenditures.”
The Janus ruling overturns decades of precedent established by a 1977 Supreme Court decision, Abood v. Detroit Board of Education. Alito argued Wednesday that that the Abood decision was “poorly reasoned” and an “ ‘anomaly’ in our First Amendment jurisprudence.”
“Abood’s line between chargeable and nonchargeable union expenditures has proved to be impossible to draw with precision,” he added.
In a dissent joined by Justices Breyer and Ginsburg, Justice Elana Kagan warned that Wednesday’s ruling “"will have large-scale consequences,” which she argued were not justified. The Abood decision “struck a stable balance between public employees’ First Amendment rights and government entities’ interests in running their workforces as they thought proper,” she wrote.
More “than 20 States have statutory schemes built on the decision," Kagan added. “Judicial disruption does not get any greater than what the Court does today."
Justice Sonia Sotomayor, the court’s other liberal justice, wrote a separate, one-paragraph dissent, adding that she joined Justice Kagan’s “dissent in full.”
As one of the 23 states that allowed unions to charge fair share fees, California is among those who will be disrupted by Wednesday's ruling . Union leaders in the state have been bracing for the decision for months by cutting costs and running membership drives to strengthen their finances as they head into an era when they won’t be able to take fair share fees for granted.
They've also persuaded state leaders to pass laws that guarantee them access to new employees and compel public agencies to follow union rules if workers want to quit paying dues to a labor organization.
Gov. Jerry Brown's administration criticized the court decision and said the administration would support union rights.
"We don’t see any reason why the current court sees fit to overturn a unanimous Supreme Court opinion that has worked well for forty-one years. We will continue to stand with hard-working Californians as they organize to protect our future," Labor and Workforce Development Agency Secretary David M. Lanier said in a written statement.
Over time, some unions anticipate losing one third to half of their members, which would weaken their position when they attempt to press for raises or protect public employee pensions. Anti-labor organizations already are reaching out to public employees, advising them on how they can save hundreds of dollars a year by quitting their unions.
The American Federation of State, County and Municipal Employees (AFSCME), whose Illinois union chapter was the defendant in the Supreme Court case, issued a defiant statement after the ruling came out Wednesday. "We are more resolved than ever to fight like hell to win for our members and the communities they care so much about," AFSCME President Lee Saunders said in a statement.
Union leaders and their allies dismissed the ruling as the product of an ideological campaign by conservatives and business interests, rather than a genuine effort to defend free speech. Conservative groups and wealthy Republican donors have helped bankroll the legal assault against fair share fees, culminating in Wednesday's ruling.
Saunders on Wednesday called the Janus case an "unprecedented and nefarious political attack – designed to further rig the rules against working people."
Democratic leaders, many of whom have received millions in political support from unions over the years, immediately denounced the decision. California Attorney General Xavier Becerra said the decision “is threatening the ability of workers to engage in collective bargaining and of states to manage our workforce." But Becerra added that "workers in California can count on our office to defend collective bargaining rights and to stand up for fair pay, workplace safety, pensions, paid sick days, health-care services and other important protections."
Lt. Gov. Gavin Newsom, the frontrunner to become governor next year, said the Janus ruling is an "assault on the middle class, not just public employee unions."
Union opponents, meanwhile, hailed the decision as a victory for workers and a defeat for Democrats. "This is the most consequential victory for civil rights in the United States in decades," Americans for Tax Reform President Grover Norquist said in a statement.
President Trump also celebrated the ruling, via Twitter. "Big loss for the coffers of the Democrats!" Trump tweeted shortly after the decision was announced. It was Justice Neil Gorsuch, the president's 2017 nominee to fill Scalia's seat, who proved to be the tie-breaking vote in the case. Trump was only able to install Gorsuch on the Supreme Court, however, because Senate Republicans blocked President Obama from filling the vacancy created by Scalia's death.
Union leaders are encouraging members to vote in November's congressional election. They pointed to Gorsuch's appointment to make their case.
"When it comes to things like politics, we’re going to continue to do what we need to do because politics matter," said Eric Heins, president of the California Teachers Association. "In fact we can see the reason we have the Supmere Court with Neil Gorsuch was because of who got elected."