A decision from the U.S. Supreme Court is expected by June on whether requiring workers to pay union fees is unconstitutional. If that happens, it will be a major threat to labor’s membership, financing, and political power in California.
Forty years ago, the court ruled that workers did not have to pay for the union’s political activity, and that’s been repeatedly reaffirmed. In California, public employee unions got around that decision by imposing a “fair-share service fee,” typically equivalent to the dues that members pay. In this latest case, the court appears ready to rule on what California Western School of Law Professor Glenn Smith calls “a major social experiment” during an interview on KUSI-TV.
“[The Supreme Court could be] changing the law for 40 years and undoing a lot of contracts between governments and public employee unions without really knowing what's going to happen,” says Smith.
Justice Neil Gorsuch, who almost certainly holds the decisive vote, asked no questions—prompting some to question whether he would join the court’s conservative majority to rule that forcing workers to support public unions violates the First Amendment.
“Everyone was predicting that he would fall in line with the other justices and vote that there is a free speech right that needs to be supported,” Smith explains. “[Gorsuch] probably thought that all the questions he needed to ask were being asked, and maybe got a little delight at not having to show his cards in oral argument.”
In arguing Monday’s case, Janus v. American Federation of State, County and Municipal Employees, No. 16-1466, the court’s more conservative members said that requiring workers who choose not to join public unions to pay for collective bargaining and similar activities is an affront to their right to free speech.
Smith explains that the question at the crux of this case is whether everything the union does is politicized. "Even things that look like bargaining for wages and working conditions can be seen as political because it’s a public employee union dealing with government," says Smith. From that viewpoint, "workers should be able to opt out of everything."
In other words, will these employees be able to benefit from union activity without paying any dues at all?
According to Smith, a decision overruling the precedent would conclude a decades-long political and legal campaign against public-sector unions, which stand to lose fees from workers who object to the positions the unions take, and from those who simply choose not to join while benefiting from union efforts on their behalf.