What’s at issue, what’s at stake in Janus, the Supreme Court case challenging compulsory union fees

February 26, 2018

On Monday, the U.S. Supreme Court heard arguments in Janus v. American Federation of State County and Municipal Employees, a case with monumental implications for all public employee unions, including California’s two teachers unions — the California Teachers Association and the California Federation of Teachers — and the California School Employees Association, which represents hourly workers. The lawsuit challenges their authority under state law to collect compulsory fees from all employees they serve. That money is the main source of unions’ income and, by extension, their power.

What follows is a summary of the issues and its implications.

Who is Mark Janus and what does he want?

Janus is a child-support specialist with the Illinois Department of Healthcare and Family Services. Illinois is one of two dozen states, including California, that require all workers to cover public employee unions’ costs to negotiate contracts and represent them on employment-related issues like wages, benefits and working conditions. This “fair share” or “agency” fee is about $45 per month for Janus, who argues that this obligation violates his First Amendment right of free speech and association.

This case sounds familiar. Why is that?

In January 2016, the Supreme Court heard the same issue in Friedrichs v. CTA, brought by 10 California teachers, including Rebecca Friedrichs, an elementary school teacher in Anaheim and lead plaintiff in the case. Like Janus, Friedrichs was not a member of her union and objected to paying an agency fee. Based on oral arguments, it appeared that the court would vote 5-4 to side with Friedrichs and overturn the four-decades old Abood v. Detroit Board of Education. In that decision, the Supreme Court allowed states to impose agency fees for public employee unions in order to prevent “free riders” — workers who benefited from contracts without bearing any expense of representation. But Justice Antonin Scalia subsequently suffered a fatal heart attack, and in March 2016, the court issued a split 4-4 ruling, leaving Abood in place. With President Donald Trump’s nomination of Neil Gorsuch, the court, at full strength, agreed to take up the issue again through Janus. While the arguments are largely the same, what has changed is the position of the White House. In Friedrichs, the federal government filed briefs supporting the unions. The Trump administration is urging the justices to overrule compulsory fees.

Why is Janus such a big deal?

Public employee unions are the last bastion of the labor movement, which now represents only 6.5 percent of private sector employees nationwide. In California, 55 percent of public employees were unionized in 2017.

If, as many court observers expect, Gorsuch forms the majority siding with Janus, public employee unions in every state would have to persuade public employees to voluntarily pay into a union that is legally obligated to represent both members and non-members. About 29,000 teachers — slightly less than 10 percent of the CTA’s 300,000-plus members — pay agency fees. If many of the remaining 90 percent of teachers stopped paying dues, the loss would jeopardize CTA’s ability to employ enough staff to adequately serve its members and to raise tens of millions of dollars the CTA and other powerful unions spend to elect for union-friendly legislators and school board members.

Legal arguments aside, CTA President Eric Heins said it’s important to put Janus in the context of an effort by “corporate CEOs, the wealthiest 1 percent and politicians who do their bidding” to roll back hard-fought gains of workers. “Their goal here, as it was in Friedrichs v. CTA, is no secret: they want to use the Supreme Court to take away the freedom of working people to join together in strong unions, because unions give workers a powerful voice in speaking up for themselves, our students, families and communities,” he said.

Two years after Wisconsin legislators rescinded that state’s mandatory fees statute, in 2011, a third of the state’s teachers had stopped paying dues. In a speech to the CTA’s State Council a year ago, CTA executive director Joe Nuñez cited a union leader from Australia who warned that American unions should be prepared to lose 30 percent to 40 percent of members. “I don’t believe it will go that high in CTA, but we need to be prepared,” Nuñez saidaccording to an article by union critic Mike Antonucci. CTA subsequently removed the speech from its website.

 What share of dues goes to politicking?

Teachers like Friedrichs, who opt out of joining a union, pay about $600 a year in agency fees out of an average $1,000 in annual dues. Agency fees are divided among a local union, the California Teachers Association and the National Education Association for their expertise and representation. The remaining $400 pays for lobbying and campaigning at the local, state and federal levels. Public-employee unions have been a key supporter of the Democratic Party in California and nationwide.

What are the arguments for overturning agency fees?

Janus argues that agency fees violate employees’ First Amendment rights, because bargaining with the state is no different from lobbying; it’s all “inherently political.” He said that he disagrees with the union’s approach to issues covered by fair-share fees. Therefore, the state shouldn’t force him to financially underwrite the union. Friedrichs made the same argument, saying she disagreed with the positions her union negotiated on tenure, layoffs and other employment issues and there’s a blurry line between what’s covered by agency fees and the portion of dues going to lobbying and advocacy.

“Whether the union is negotiating for specific class sizes or pressing a local government to spend tax dollars on teacher pensions rather than on building parks, the union’s negotiating positions embody political choices that are often controversial,” said the Washington-based Center for Individual Rights, which represented Friedrichs.

What are the arguments for upholding agency fees?

In an article in a closely watched SCOTUSblog, California Attorney General Xavier Becerra argues that the Supreme Court reached the right balance in Abood, in concluding that the state is well served as an employer when there is a stable and orderly system to convey the views of workers.

The idea behind the fees required is simple: Everyone who benefits from union representation should share fairly in the cost,” Becerra wrote. And he added, “critical state interests” are at stake since “collective bargaining also provides public-sector employers with an effective tool for managing the workplace.”

Becerra, who filed a friend-of-the-court brief in the case last month, also distinguished between an employee’s right of expression and workplace and employment issues, which have fewer, and in some instances, no 1st Amendment protections. “It would also be wrong to equate agency fees with compelled-speech restrictions that the Supreme Court has struck down,” he wrote.

Or, as Catherine Fisk, a professor of law at the U.C. Berkeley School of Law, wrote in an article for SCOTUSblog, “If the Supreme Court accepts the argument that paying fees violates the 1st Amendment rights of government employees, it will be the only case in which the court has held there is a 1st Amendment right to refuse to pay money to support speech that is not itself protected by the 1st Amendment.”

What’s been done in California in anticipation of an adverse ruling in Janus?

Gov. Jerry Brown and union-friendly legislative leaders included language in the current state budget requiring school districts, cities and other government agencies to give their employee unions regular opportunities to meet and sign up new workers, along with providing job titles and contact information for all employees at least every 120 days.

“Our world will change dramatically (if the court sides with Janus),” Joshua Pechthalt, president of the California Federation of Teachers, the smaller of the two statewide teachers unions, told EdSource last year. “Having time to talk about what we do, who we are, why we are stronger if folks agree to be members will become doubly important.”

The CTA and CFT have had two extra years since Friedrichs to make good on their pledges to shore up support by having local presidents engage with every teacher. Randi Weingarten, president of the American Federation of Teachers, called Janus “transformational.”

“There has been much more robust connection between leaders and their membership,”  she told U.S. News & World Report.

The CTA’s website includes a toolkit encouraging members to reach out to the community to talk about “what this case is really about and the threat it poses to our families, public services and communities.”

Are there legal issues beyond Janus?

Waiting in the wings is a California lawsuit, Yohn v. CTA, on an issue that the Janus decision will likely not resolve. Ryan Yohn, a 13-year middle school history teacher in Huntington Beach, and six other teachers argue that what they call a burdensome process of opting out of the CTA violates their rights. They must sign a form every year and then wait until the end of the year to be reimbursed for all but agency fees. Yohn said for years he didn’t know he even had the option. They want the court to require teachers to opt in if they want to join a union. The Center for Individual Rights, which represented Friedrichs, is handling this case, too.

The CTA argues that a one-page form, filed annually, is not burdensome.

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