Antonucci: What If the Supreme Court Rules in Favor of Teachers Unions in the Janus Case?
Mike Antonucci’s Union Report is published every Wednesday and includes a complete collection of past articles.
We are approaching a crucial judgment from the U.S. Supreme Court in the case of Janus v. AFSCME. This case will decide whether government unions can continue to charge fees to individuals who are not members of the union but are represented by them.
Neil Gorsuch, who was appointed by President Trump, joined the court after a previous deadlock in the Friedrichs case, which presented a similar challenge to union practices. Legal experts predict that the justices will rule against labor in a 5-4 decision.
In response, public sector unions are taking action. The National Education Association has already planned a $50 million reduction in its operating budget, and other unions are considering similar cuts. Both supporters and opponents of the issue are proceeding with the assumption that the Supreme Court will reject agency fees.
However, I am hesitant to accept these assumptions as absolute conclusions. I am reminded of Chief Justice John Roberts changing his stance in 2012, opting to uphold the Affordable Care Act’s individual mandate despite initially being in favor of striking it down. Additionally, Justice Antonin Scalia’s untimely death impacted the outcome of the Friedrichs v. CTA case, potentially altering the union’s fate.
Although it may seem likely that the court will strike down agency fees, it is not as certain as the rising sun. What if the American Federation of State, County, and Municipal Employees (AFSCME) and the National Education Association (NEA), along with numerous other government unions, emerge victorious?
The least probable outcome is that the 1977 Abood decision, which established the agency fee system, will be upheld entirely. At that time, the court ruled that a public-sector union could charge non-members for services that were relevant to their duties as the exclusive bargaining representative. However, the court deliberately avoided specifying the exact boundaries of what could be considered "relevant," leaving unions, arbitrators, and judges to grapple with this issue for the past 40 years.
Unions often emphasize that the Abood decision was unanimous, but this overlooks the opinions expressed by individual justices. Justice Potter Stewart expressed concern about burdening employees with the task of monitoring the union’s expenditures that were unrelated to its role as the exclusive bargaining representative. Justice William Rehnquist acknowledged that public employees’ unions inherently engage in political matters during collective bargaining activities. Justice Lewis Powell, joined by Chief Justice Warren Burger and Justice Harry Blackmun, went even further by stating that limiting First Amendment rights in such a way was unnecessary and unsupported by precedent or reason.
These opinions from the justices who decided the case suggest that they were not entirely supportive of the agency fee concept. They saw it as a compromise between requiring all public employees to pay full dues, which was the norm at the time, and allowing them to pay nothing at all.
The current Supreme Court may choose to modify the Abood decision instead of completely overturning it. One potential solution could be to limit agency fees to services that unions are legally obligated to provide, such as negotiating and enforcing collective bargaining agreements. This aligns with a recent law in New York that grants unions the ability to deny legal representation and other benefits to non-members. If individuals want access to these services, they must join the union. However, this would result in smaller agency fees, potentially incentivizing individuals to leave the union.
If the court decides to retain agency fees in any form, unions would achieve a significant public relations victory. They would no longer need to substantially reduce their budgets or allocate resources to recruitment efforts. The question arises: what would they do with the newfound funds?
When attempting to predict the actions of government unions in the future, it is safe to assume that they will continue to follow their past patterns. We would likely witness a substantial increase in political and campaign spending as unions try to reverse what they perceive as years of defensive play. With a relatively strong economy and the potential for Democratic gains across various sectors, unions would exert pressure for increased government spending, particularly in the field of education.
Surprisingly, a remarkable 57 percent of teachers claim to have heard nothing about the Janus case. If the Supreme Court upholds the status quo, this ruling would go unnoticed in our nation’s classrooms as if Janus never existed.
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