By Don McIntosh
If public employees are required to pay at least some costs of the union that represents them, does that violate their First Amendment rights of freedom of speech and association? For 40 years, U.S. courts have said it doesn’t, in obedience to a unanimous 1977 U.S. Supreme Court decision in a case called Abood v Detroit Board of Education. But the April 7 confirmation of Supreme Court Justice Neil Gorsuch starts the clock ticking on a case that is expected to overturn that — and result in court imposition of the anti-union “right-to-work” idea on all public sector workplaces in America.
Under the Abood decision, union-represented workers don’t have to become union members, or pay anything to support the union’s political work if they disagree with that. But they can be required to pay fees to cover the union’s costs to represent workers in disciplinary cases and negotiate and enforce the union contract. The fees are called “fair share” fees or “agency” fees. In the 23 states that allow unions to charge fair share fees to represented non-members, the fees typically run about 85 percent of full union dues. And in those states, on average about 7 percent of represented workers pay fair share fees instead of full union dues.
The case that could overturn Abood is called Janus v AFSCME. The lead plaintiff is Mark Janus, an AFSCME-represented public employee in Illinois. The case was dismissed by the 7th District U.S. Court of Appeals in March, but the Supreme Court could agree to hear an appeal when it begins its next session this October.
Last year, the Supreme Court split 4-4 on Friedrichs v California Teachers Association, a similar challenge to Abood. The four Republican-appointed justices voted to overturn Abood, and the four Democratic appointees voted to uphold it. It’s assumed that Gorsuch would vote with the other Republican appointees if the court hears the Janus case.
That means public sector unions have between six to 13 months before paying anything at all to the union becomes strictly a voluntary decision. Many public sector unions are getting ready by appealing to their fair share fee payers one-by-one to become full members.
They could look to Jim Falvey for tips. Falvey is president of National Association of Letter Carriers Branch 82, which represents Portland-area postal service letter carriers. U.S. Postal Service unions already operate in a “right-to-work” voluntary-dues environment. So do all other federal employee unions. Yet Branch 82 manages to get over 96 percent of union-represented workers to pay dues voluntarily. How? First, by insisting in contract negotiations that the employer give the union a chance to meet with new hires. During new employee orientation, Falvey gets time to deliver an energetic pitch about how important the union is to letter carriers. The few he fails convince are later set upon by their coworkers — who don’t want to see their union weakened by freeloaders. The union publishes the names of non-members so all members can see who’s not paying their share. Branch 82 even offers a bounty to a member who signs up a non-member.
“I don’t believe [right-to-work] is the death knell that everybody says it is,” Falvey says.
For the union movement, it matters a great deal how successful public sector unions are in maintaining support once fair share goes away. Today approximately 4.1 million local government workers and 2.1 million state government workers are union members, and they make up about 42 percent of all union members. If even one in five drop their membership, that would weaken the union movement by over a million members — at a time when unions and the public sector are already under attack.
