Supreme Court: Public-safety unions in Wisconsin can’t require fees be paid by non-members

June 28, 2018 GMT

Public-safety worker unions in Wisconsin cannot require that fees be paid by non-union members under a pivotal ruling issued Wednesday by the U.S. Supreme Court.

Gov. Scott Walker touted the national ruling as a sign Wisconsin was ahead of the curve seven years ago when it passed a landmark law curtailing the power of public unions.

Most public unions in Wisconsin were barred from collecting so-called “fair-share” fees by Act 10, the 2011 state law that broadly curtailed their power. But that law exempted public-safety unions such as police, firefighters and the State Patrol.

The U.S. Supreme Court ruling applies the ban on requiring payment of fair-share fees by non-union members to all public unions nationwide. It overturns a 41-year-old decision that had allowed states to require that public employees pay such fees to unions that represent them in collective bargaining even if the workers choose not to join — so long as the fees cover only the unions’ costs to bargain and their administration, not their political or advocacy work.

As was the case in Wisconsin after Act 10, the national Supreme Court ruling is likely to cause public union membership elsewhere to decrease and their political clout to wane, one expert said.

The 5-4 decision, issued in response to a challenge by an Illinois state employee, Mark Janus, fulfills a long-time wish of conservatives to get rid of fair-share fees that non-members pay to unions in roughly two dozen states. The court ruled that the laws violate the First Amendment by compelling workers to support unions they may disagree with.

Jim Palmer, director of the Wisconsin Professional Police Association, said his organization will begin to allow non-members to opt out of having fair-share fees deducted from their paychecks.

“The potential impact on public-safety unions in Wisconsin could be significant,” Palmer said.

Still, Palmer said he’s optimistic his union will largely maintain its membership — in part because it provides services in addition to collective bargaining, such as legal representation for police officers, that aren’t extended to non-members.

Walker posted to his Twitter account that Wednesday’s ruling affirms the GOP enactment of the deeply controversial Act 10. That law also limited the extent to which public unions could bargain for wages and benefits.

“Supreme Court today affirms what we did years ago — gives public servants the freedom to choose whether they want to be in union or not. Pro-worker & pro-taxpayer! Great day!” Walker tweeted.

When Act 10 was being debated in 2011, Walker justified the exemption for public-safety unions by saying he could not risk potential strikes by workers in those sectors.

Walker’s office did not immediately respond to an inquiry about the impact of Wednesday’s ruling on Wisconsin public-safety unions.

Phil Neuenfeldt, president of the Wisconsin AFL-CIO, vowed that “workers are on the rise and the Supreme Court can’t stop us.”

“At a time when our democracy and economy are rigged to overwhelmingly favor the wealthy, America needs unions now more than ever so our middle class can thrive,” Neuenfeldt said.

In the years since Act 10’s enactment — which also included enactment of a 2015 “right to work” law barring private unions from requiring payment of fair-share fees — membership in Wisconsin unions has plummeted. As of 2016, it had fallen nearly 40 percent in the state.

Rick Badger, director of AFSCME Council 32, declined to give “hard numbers” on his union’s membership. But Badger said the declines seen shortly after Act 10’s enactment have subsided and membership has largely stabilized.

Ryan Owens, a UW-Madison political science professor and expert on the U.S. Supreme Court, said it’s likely public unions nationally will see similar membership declines after the court’s ruling.

Union leaders said in reaction to the ruling that they expect to suffer some loss of revenue and also predicted that the same anti-union forces that pushed to get rid of the so-called fair shares that nonmembers had to pay will try to persuade members to cut their ties.

Owens said he’s skeptical that anything in Wednesday’s ruling would lead to a future high court ruling to bar private unions from collecting fair-share fees.

Trump tweets triumphantly

President Donald Trump weighed in minutes after the decision was handed down, while Justice Samuel Alito still was reading a summary of it from the bench.

“Big loss for the coffers of the Democrats!” Trump said in a tweet.

The 5-4 decision came along ideological lines, with conservatives in the majority. The court split 4-4 the last time it considered the issue in 2016 after the death of Justice Antonin Scalia. Organized labor is a big supporter of Democratic candidates and interests. Last year, unions strongly opposed Justice Neil Gorsuch’s nomination by Trump. Gorsuch was in the majority Wednesday.

The unions say the outcome could affect more than 5 million government workers in about two dozen states and the District of Columbia.

The Janus case is similar to the one the justices took up in 2016. At that time, the court appeared to be ready to overrule a 1997 high court decision that serves as the legal foundation for the fair-share fees. But Scalia’s death left the court tied, and a lower court ruling in favor of the fees remained in place.

The unions argued that so-called fair-share fees pay for collective bargaining and other work the union does on behalf of all employees, not just its members. More than half the states already have right-to-work laws banning mandatory fees, but most members of public-employee unions are concentrated in states that don’t, including California, New York and Illinois.

Labor leaders fear that not only will workers who don’t belong to a union stop paying fees, but that some union members might decide to stop paying dues if they could in essence get the union’s representation for free. A recent study by Frank Manzo of the Illinois Public Policy Institute and Robert Bruno of the University of Illinois at Urbana-Champaign estimated that public-sector unions could lose more than 700,000 members over time as a result of the ruling and that unions also could suffer a loss of political influence that could depress wages.

Arguments from the justices

Alito acknowledged that unions could “experience unpleasant transition costs in the short term.” But he said labor’s problems pale in comparison to “the considerable windfall that unions have received ... for the past 41 years.”

Billions of dollars have been taken from workers who were not union members in that time, he said.

“Those unconstitutional exactions cannot be allowed to continue indefinitely,” Alito wrote.

Liberal Justice Elena Kagan, reading a summary of her dissent in the courtroom, said unions only could collect money for the costs of negotiating terms of employment. “But no part of those fees could go to any of the union’s political or ideological activities,” she said.

The court’s majority said public-sector unions aren’t entitled to any money from employees without their consent.

The Associated Press contributed to this report.