On Monday, February 26, the Supreme Court of the United States heard oral argument in Janus v. American Federation of State County and Municipal Employees, Council 31 (AFSCME).
At issue in the case is the right of unions to collect fees in exchange for the services they provide to everyone covered in a collectively bargained contract.
According to the Petitioner in this case, Mr. Janus, paying a fee for union services violates his First Amendment right to free speech. According to AFSCME, the Respondent, agency fees are a mutually agreed upon method of funding that allows unions to work with their government employers to resolve grievances and collectively bargain for wages, benefits and other workplace conditions.
A decision in favor Janus would reverse over 40 years of established law. It will also reduce union resources and negatively impact the bargaining power of unions in negotiations and workplace grievances.
The lawyers and special interests representing Mr. Janus made no effort to hide that their intentions through this case was to use the speculation of a First Amendment issue to achieve the result of weakening unions.
A lawyer representing Mr. Janus, William Messenger, said, “… to the degree to which the union resources are diminished by individuals exercising their First Amendment right not to subsidize that union, I submit that’s a perfectly acceptable result.”
The Court is expected to render its decision on this case some time this spring. Those who follow the Supreme Court closely are predicting that the court will rule in favor of Janus by a slim 5-4 majority. This majority, experts say, will be comprised of the 5 Court justices appointed by Presidents whose campaigns were bankrolled by the very corporate interests that would be well served by unions that have less strength than they have today.
Lawyers representing AFSCME made some
compelling arguments that would
provide members of the Court with a
rationale for ruling against Janus.
In the end, what the experts predict may very well be the outcome. However, if history has shown us anything, it is that when it comes to Supreme Court decisions, the experts can be wrong.
The Court has not always ruled along partisan lines. For example, in both 2012 and 2015, President Obama’s signature legislative achievement, the Affordable Care Act (ACA), was under a legal attack by corporate interests whose bottom line was negatively impacted by the legislation. Despite having been appointed by Republican leadership, Chief Justice John Roberts broke away from the GOP side of the argument and defended the Democratic law. The second time, in 2015, Roberts persuaded Justice Anthony Kennedy, who had voted in the Republicans’ favor in 2012, to come along with him in the majority decision to uphold the constitutionality of the ACA.
Could something like this happen again? Could Justices rule in Janus against the corporate interests that are directly responsible for putting them on the Court in the first place?
If such a ruling did happen, the Justices who might brake away from their expected party affiliation would have to have strong legal reasons for doing so.
In court on Monday, February 26, lawyers representing AFSCME made some compelling arguments that would provide members of the Court with a rationale for ruling against Janus. The four areas where the arguments for AFSCME were the strongest pertained to stare decisis, reliance issues, First Amendment rights, and the interest of government to work with unions to maintain labor peace.
The judicial doctrine known as Stare Decisis has been used in courts in the United States and England for hundreds of years. The Latin term means “to stand by things decided.” Stare Decisis is a policy whereby courts abide or adhere to principles established in earlier cases where a similar issue has been brought before them.
In the Janus case, stare decisis has been established in the Abood v. Detroit Board of Education (1977) case. In this decision, the Court ruled that a union was permitted to require agency fees to recover costs associated with collective bargaining, contract administration and grievance procedures from every employee regardless of whether or not they wish to be a member of the union. This could be done as long as the union did not use funds from the agency fees for ideological or political purposes.
The United State Supreme Court rarely overturns one of its precedent setting decisions, at least not without irrefutable and just cause. An example of the Court overturning a position would be the Brown v. Board of Education case that went against the stare decisis of Plessy v. Ferguson because it was abundantly clear to the Court that its ruling in Plessy essentially legitimized segregation.
Without question, the argument being made by Janus to overturn the stare decisis established in the Abood case, is in no way as strong, as clear cut, or as compelling as Brown v. Board of Education. This point was put to the lawyers on Janus’ side very plainly by Justice Stephen Breyer in his comments during the oral argument.
“What you’re doing basically is trying to apply a more modern framework to some older cases. This has been the law for 50 years just about,” Breyer said. “Do you think we should apply modern frameworks to all old cases, begin with Marbury versus Madison?”
Additional stare decisis comes from a more modern case, Lehnert v. Ferris Faculty Association. This 1991 ruling was similar in scope to the Janus case in that Lehnert was seeking relief from paying his fair share of union fees.
In addition to the legal precedent established in this case, of specific interest here was the language used by the justices who dissented and the justice who wrote that dissent.
Many remember that last year the Supreme Court heard the Friedrichs v. California Teachers Association case. This case, yet another attack on union agency fees, was supposed to have been decided against the unions. However, the untimely passing of conservative Justice Antonin Scalia created a 4-4 tie on the Court and ended with no judgment against unions.
“The fees are the tradeoff. Union security is the tradeoff
for no strikes,” Frederick said. “And so if you were to
overrule Abood, you can raise an untold specter
of labor unrest throughout the country.”
While most experts feel Justice Scalia would have ruled against unions in the Friedrichs case, Scalia’s own words from past Court decisions may prove otherwise.
Justice Scalia wrote the dissent in the Lehnert case. In doing so, he laid out his opinion that unions do have a right to require fees for providing services that they are required to provide by contract.
Scalia wrote, “I would hold that contributions can be compelled only for the costs of performing the union's statutory duties as exclusive bargaining agent.”
Current sitting Supreme Court Justice, Anthony Kennedy, joined Justice Scalia in the dissent in the Lehnert case. The hope for unions is that Justice Kennedy will not reverse the opinion he sided with in a past decision and allow unions to continue to collect agency fees for the mandated services they provide to all workers under a contract.
Reliance interests come up when two sides make an agreement and one side changes their commitment to that agreement in some way.
All contracts currently in place between unions and employers were agreed upon with both sides understanding that unions would collect agency fees. Any change to that arrangement in the middle of the contract could void that contract as it can be argued that the union might not have negotiated the agreement as they did if they knew they could not collect agency fees from all workers.
Justice Elena Kagan brought this point to the forefront during her questions to Janus’ legal team. Justice Kagan explained that a ruling in favor of Janus would mean that, “Twenty-three states, the District of Columbia, Puerto Rico, all would have their statutes declared unconstitutional at once. Thousands of municipalities would have contracts invalidated.” According to Kagan, the invalidation of all of these agreements would likely involve over 10 million workers in America.
“When have we [the Supreme Court] ever done something like that?,” Kagan asked. “What would be the justification for doing something like that?”
The First Amendment
The idea that a required agency fee was a free speech violation, a key point in Janus’ argument, was challenged during the oral argument in the case.
Representing AFSCME, Solicitor General of Illinois, David Franklin, stated that agency fees are not free speech, but instead are, “a condition of public employment because they pay for workplace services.” “What we’re talking about here,” Franklin explained, “is a compelled payment of a fee. So it’s one step removed from compelled speech.”
In her comments during the oral argument Justice Sonia Sotomayor pointed out that compelling people to pay a fee for services rendered as part of their association is not without precedent and has not been challenged as a violation of the First Amendment in other situations where such fees are required.
“I mean, our [The Supreme Court] line has drawn a big difference between compelled speech and compelled subsidy,” Sotomayor said. “And we’ve compelled people to pay bar associations, so long as your not compelled from speaking when you disagree.”
“Bar members can come out any day they want and say they don’t take the same position on a policy question as the bar association,” Sotomayor said. “Any union member is free to get up publicly in any setting he or she wants to say they don’t agree with the position the union is taking….”
One additional convincing argument made in favor of the AFSCME concerned the idea that the government has a compelling interest in continuing the current agency fee arrangement with unions as a means for maintaining labor peace.
During oral arguments Justice Breyer remarked, “… I once heard Archie Cox [former United States Solicitor General, Archibald Cox] … say the greatest instrument for labor peace and prosperity from the years 1945 to 1970 was grievance arbitration in the unions.”
Representing AFSCME in the oral argument, David Frederick commented that, “…the key thing that has been bargained for in this [AFSCME] contract for agency fees is a limitation on striking. And that is true in many collective bargaining agreements.”
“The fees are the tradeoff. Union security is the tradeoff for no strikes,” Frederick said. “And so if you were to overrule Abood, you can raise an untold specter of labor unrest throughout the country.”
Referencing yet another case pertaining to workplace relations, Solicitor General Franklin noted, “… this Court has said, for example, in the Connick [Connick v. Thompson] case that there ought to be judicial deference to the predictive judgments about workplace harm and that in particular - this is a quote from Connick - ‘we do not see the necessity for an employer to allow events to unfold to the extent that the destruction of working relationships has to be manifest before the state can take prophylactic action to stop it’.”
While not specifically referenced by any lawyer or Supreme Court Judge during oral argument in this case, one need only look at the recent teacher strike in West Virginia as an example of how there is often a greater likelihood of labor unrest in situations where unions are stripped away of their legal authority to be an equal bargaining power with their employer.
It is the belief of those who support the right of unions to collect a fair share fee that any one of the compelling legal points made during the oral argument in this case will be enough to convince a majority of the Court to side against Mr. Janus.
A ruling for Janus would overturn almost half a century of legal precedent, something the Court is almost always reluctant to do. A ruling for Janus can and will invalidate contracts across the country fairly bargained for under agency fee rules. In some states, contracts contain provisions whereby unions continue to provide services under an existing agreement while a new one is being negotiated. Our state of New York is one example of this.
However, should the rules be changed regarding the rights of unions to collect fair share fees, so then could the rules be changed regarding the willingness of unions to maintain labor peace during bargaining and grievance resolution. If the rules are changed, workers, like those in West Virginia, may be compelled to go on strike in an expression of their First Amendment right to petition the Government for a redress of grievances if other means to resolve issues are significantly compromised as a result of a decision by the Court.
Without question, there are a lot of issues in this case for the Supreme Court to consider. Some of these issues extend well beyond the corporate interests of the people who worked to appoint these justices to their positions. How will they rule? Only time will tell.