Supreme Court Ruling Delivers a Sharp Blow to Labor Union
By Adam Liptak
June 27, 2018
WASHINGTON — The Supreme Court dealt a major blow on Wednesday to organized labor. By a 5-to-4 vote, with the more conservative justices in the majority, the court ruled that government workers who choose not to join unions may not be required to help pay for collective bargaining.
Forcing those workers to finance union activity violated the First Amendment, Justice Samuel A. Alito Jr. wrote for the majority. “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,” he wrote.
The ruling means that public-sector unions across the nation, already under political pressure, could lose tens of millions of dollars and see their effectiveness diminished.
“We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members,” Justice Alito wrote. “But we must weigh these disadvantages against the considerable windfall that unions have received” over the years.
Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Neil M. Gorsuch joined the majority opinion, which overruled a four-decade-old precedent.
Justice Elena Kagan summarized her dissent from the bench, a sign of profound disagreement.
“There is no sugarcoating today’s opinion,” she wrote. “The majority overthrows a decision entrenched in this nation’s law — and in its economic life — for over 40 years.”
“As a result,” she wrote, “it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”
Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined the dissent.
The majority based its ruling on the First Amendment, saying that requiring payments to unions that negotiate with the government forces workers to endorse political messages that may be at odds with their beliefs.
Unions say that reasoning is flawed. Nonmembers are already entitled to refunds of payments spent on political activities, like advertising to support a political candidate.
Collective bargaining is different, the unions say, and workers should not be free to reap the benefits of such bargaining without paying their fair share of the costs.
The decision could encourage many workers perfectly happy with their unions’ work to make the economically rational decision to opt out of paying for it.
President Trump took to Twitter to praise the decision, saying it would be a “big loss for the coffers of the Democrats!”
Limiting the power of public unions has long been a goal of conservative groups. They seemed poised to succeed in the Supreme Court in 2016, when a majority of the justices looked ready to rule that the fees were unconstitutional.
But Justice Antonin Scalia died not long after the earlier case was argued, and it ended in a 4-to-4 deadlock. The new case, which had been filed in 2015, was waiting in the wings and soon reached the Supreme Court. Justice Neil M. Gorsuch, President Trump’s Supreme Court appointee, voted with the majority.
The new case, Janus v. American Federation of State, County and Municipal Employees, No. 16-1466, was brought by Mark Janus, a child support specialist who works for the state government in Illinois. He sued the union, saying he did not agree with its positions and should not be forced to pay fees to support its work.
Wednesday’s ruling overruled the court’s 1977 decision in Abood v. Detroit Board of Education, which had made a distinction between two kinds of compelled payments. Forcing nonmembers to pay for a union’s political activities violated the First Amendment, the court said. But it was constitutional, the court added, to require nonmembers to help pay for the union’s collective bargaining efforts to prevent freeloading and ensure “labor peace.”
The new decision struck down an Illinois law that required government workers who chose not to join a union to “pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment.” More than 20 states have laws that require such “agency fees.”
According to Justice Alito, workers like Mr. Janus were charged about 78 percent of the dues paid by members of the union.
“Abood was poorly reasoned,” Justice Alito wrote. “It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions.”
The distinction drawn in the Abood case — between a union’s political spending and other activities — is untenable and unworkable, Justice Alito added. Taken together, he said, these factors justified a departure from the principle of stare decisis, Latin for “to stand by things decided.”
Justice Alito wrote that “labor peace” did not justify the compelled payments allowed by the Abood decision, saying that there was “no evidence that the pandemonium it imagined would result if agency fees were not allowed.”
Free riding may be the wrong metaphor, Justice Alito added. Mr. Janus “strenuously objects to this free-rider label,” Justice Alito wrote. “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.”
In dissent, Justice Kagan wrote that “the majority subverts all known principles of stare decisis.”
Citing earlier majority opinions from Justice Alito that paved the way for Wednesday’s ruling, she said the supposed erosion of legal support for Abood was a “bootstrapping.”
“Don’t like a decision?” Justice Kagan wrote. “Just throw some gratuitous criticisms into a couple of opinions and a few years later point to them as ‘special justifications’ ” for overruling a precedent.
“The majority,” Justice Kagan wrote, “has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to.”
More broadly, she wrote, the decision was one of several in which conservatives have misused the Constitution’s free speech protections to achieve political ends. “The First Amendment was meant for better things,” she wrote. “It was meant not to undermine but to protect democratic governance — including over the role of public-sector unions.”
Justice Alito wrote that unions have survived in settings where compelled payments from nonmembers are not required. Only 27 percent of federal workers, for instance are members of a union, he wrote.
Justice Kagan responded that the analogy to Illinois and other states was inapt. “First,” she wrote, “many fewer federal employees pay dues than have voted for a union to represent them, indicating that free-riding in fact pervades the federal sector. And second, that sector is not typical of other public workforces. Bargaining in the federal sphere is limited; most notably, it does not extend to wages and benefits.”
Wednesday’s ruling was not likely to be particularly disruptive, Justice Alito wrote, “because public-sector collective-bargaining agreements are generally of rather short duration.”
Justice Kagan disputed that. “The majority undoes bargains reached all over the country,” Justice Kagan wrote, adding that the decision “wreaks havoc on entrenched legislative and contractual arrangements.”
In New York City alone, she wrote, 144 contracts with 97 public-sector unions call for agency fees and will have to be renegotiated.
The decision is unlikely to have a direct effect on unionized employees of private businesses, because the First Amendment restricts government action and not private conduct. But unions now represent only 6.5 percent of private sector employees, down from the upper teens in the early 1980s, and most of the labor movement’s strength these days is in the public sector.
Wednesday’s ruling contained a final blow for public unions, saying that workers must affirmatively agree to support them.
“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,” Justice Alito wrote.
https://www.nytimes.com/2018/06/27/u...zed-labor.html
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