High court weighs rights of ‘free riders’ in government employee unions
WASHINGTON — In a closely watched labor case, justices of the Supreme Court appeared likely to favor the rights of individual government employees not to contribute to unions over the unions’ insistence that such defections would undermine their collective-bargaining strength.
Janus v. AFSCME grew out of a worker’s objection in Illinois but has ramifications for labor-friendly Connecticut, where unions for state and local employees are strongly entrenched.
In oral arguments Monday, the justices appeared to divide 4-4 along ideological lines on whether the required $45 monthly dues that Illinois child-support employee Mark Janus pays to the American Federation of State, County and Municipal Employees compromises his First Amendment rights.
There are approximately 37,000 AFSCME members in Connecticut, a union spokesman said. Union demonstrators in four cities, including Stamford, rallied to defend AFSCME on Monday.
Justice Anthony Kennedy, normally the swing vote in closely decided cases before the court, came down firmly on the side of Janus and Illinois Republican Gov. Bruce Rauner.
Justice Neil Gorsuch, confirmed last year after his nomination by President Donald Trump, stayed silent throughout arguments. But court watchers generally view him as a reliable conservative vote in cases with an ideological twist.
If Gorsuch and Kennedy vote as expected, the result would be 5-4 against AFSCME, whose lawyer on Monday dismissed workers who don’t want to pay dues as “free riders.”
Connecticut’s pro-union congressional delegation for the most part expressed support for AFSCME’s argument that unless it can collect dues from all affected employees, its position against governmental entities at the bargaining table will be weakened.
“Public service workers like teachers and firefighters are the backbone of our communities,” said Rep. Rosa DeLauro D-Conn., in a statement. “That is why I am proud to stand shoulder-to-shoulder with them in the fight against corporate special interests that are attempting undermine their ability to fairly negotiate for better wages and benefits.”
Sen. Richard Blumenthal, D-Conn., submitted a friend-of-the-court brief with Sen. Sheldon Whitehouse, D-R.I., which showed an array of anti-union conservative organizations funding the effort that brought the case to the Supreme Court.
“Powerful conservative interests are the real parties here,” Blumenthal said in an interview. “The goal here very simply is to decimate unions and collective bargaining.”
A 1977 court precedent states that while union dues for avowedly political purposes such as candidate endorsements and campaign contributions implicate workers’ First Amendment rights, payments for the nuts and bolts of collective bargaining do not. Such funding is known variously as “agency fees” or “fair-share fees.”
Lawyers for Janus argued the divide between collective bargaining mechanics and avowedly political purposes is murky and bargaining for wages and working conditions with government by definition has a political dimension.
At the arguments Monday, Kennedy picked up on the thread against the unions.
“What we’re talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly,” Kennedy said.
He grilled the lawyer representing AFSCME, David Fredrick, on whether a loss in this case would end up diminishing the political clout of unions.
When Frederick admitted a defeat would indeed undercut unions’ political power, Kennedy said: “Isn’t that the end of this case?”
On the other side, liberal justices Ruth Bader Ginsburg and Sonia Sotomayor questioned lawyers for Janus and Illinois on how mandatory fees for unions that bargain for all employees was different from collection of student fees on campus or bar association memberships.
“You’re basically arguing do away with unions, because you are really … saying every single employee decision is really a public policy decision,” Sotomayor said. “I have an individual person I want to fire or discipline. You just said it’s a public policy question.”
The Supreme Court is likely to decide the case before its adjournment for the summer at the end of June.