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The U.S. Supreme Court, Unions, and the Future of Collective Bargaining in the Public Sector

The U.S. Supreme Court will soon hear a case that has the potential to rock the world of unions that represent public sector employees in Rhode Island and throughout the country.  The Court will decide whether state government workers who do not want to be members of a union must still pay an “agency fee,” equal in amount to union dues, to cover the union’s costs in negotiating and enforcing the terms of collective bargaining agreements.  The decision could effectively invalidate a Rhode Island statute, R.I. General Laws § 36-11-2, which requires public sector workers who do not wish to belong to the union designated as their exclusive bargaining representative to pay an agency fee equal to the dues paid by union members.

This is not the first time that the U.S. Supreme Court has addressed the union dues/agency fee issue.  Forty (40) years ago, in Abood v. Detroit Board of Education, the Court deemed constitutional the agency fees paid to unions and used to finance costs related to collective bargaining, contract administration, and the grievance process.  Then, last year, in Friedrichs v. California Teachers Association, a group of California public school teachers again challenged agency fees, claiming that the use of their money to support political candidates and political causes violated their First Amendment rights.  The California teachers appeared likely to win the case and get out from under having agency fees deducted from their paychecks until the sudden death of Justice Antonin Scalia, which left the 9-justice Supreme Court in a 4-to-4 deadlock.  Without Justice Scalia’s vote to break the tie, the unions lived to see another fee-collecting day, with the lower court’s decision in favor of the unions being allowed to stand.

Now, the Supreme Court is set to hear a new challenge to agency fees in the matter of Janus v. the American Federation of State, County and Municipal Employees.  Mark Janus, an Illinois state worker, has brought a lawsuit claiming that he disagrees with his union’s positions and should not be forced to fund its work.  He claims that all union business – and not just the support of political candidates and legislative bills – is political in nature because it involves matters of public concern, and that, therefore, he and other state government workers should not have to pay any fees at all to the union.  With conservative Justice Neil Gorsuch now sitting in the seat left vacant by Justice Scalia, the Supreme Court appears poised to decide against the public sector unions and allow state workers to get the benefit of the unions’ work – negotiating contracts, enforcing them, and advocating for employees in the grievance process – without having to pay a dime.

What does this mean for public sector workers and the governments that employ them?  It means that unions are likely to see a significant drop in revenue and have significantly less funds available to negotiate and enforce the collective bargaining agreements that govern the terms and conditions of employment.  It also means that employers may be pressed to treat union members differently from workers who are not union members and who do not pay agency fees.  Employers may be asked to apply contractual seniority terms, for instance, only to those workers who pay union dues or an agency fee, thereby giving priority to dues/fee-paying workers in matters that include promotions, layoffs, overtime, and vacation time.  Legislative bills purporting to legalize discriminatory treatment of non-paying workers and relieving unions of the duty to represent “free riding” bargaining unit workers may also start coming before the Rhode Island General Assembly and other state legislatures.

A loss for the unions in Janus may also mean more labor unrest, with unions feeling forced to “dig in their heels” rather than resolve disputes with the employer to prove to their workers that union membership has value; that the union will provide the leverage necessary to back them in disputes over wages, benefits, and working conditions; and that union membership will mean increases in workers’ salaries, improved benefits for workers and their families, and greater opportunities for advancement.  Even in states that have no-strike laws for public sector employees, unions may feel pressured to engage in work stoppages and other disruptive job action to try to “win back” workers who have stopped supporting the work of their unions with dues money and agency fees.  If the Janus case results in weakened unions and a fractured workforce, then at best, there is likely to be an element of chaos in public sector labor relations, at least until governmental entities, state legislators, policymakers, and unions figure out how best to promote sound labor relations with a workforce that includes employees who wish to have their unions serve as their collective voice, as well as employees who reject the concept of financially supporting the duly-elected unions that may not reflect their personal political views.

With union membership currently at an all-time low in both the private and public sectors, expect unions to focus on promoting the benefits of union membership to workers who may not have grown up in union households.  Latino workers, in particular, could play a significant role in determining the future of labor unions and potentially increasing the ranks of workers who support the work of unions in collectively representing workers and leveling the playing field as between workers and the companies that hire, pay, and fire them.  Expect unions to focus on educating their Latino members about the benefits of the collective bargaining process.  Latino workers have a median age that is younger than that of workers in other groups, and their rapid growth as a presence in the American workforce gives them the potential to provide much-needed support to unions, as well as the potential to serve as the union leaders of the future.

The Janus case may challenge governmental employers, unions, and employees to reinvent the concept of labor relations in the public sector.  Perhaps this crisis in public sector labor law will spur groups of workers that have, until now, been underrepresented in the collective bargaining process and in union leadership to step forward and claim a voice in addressing the challenges that lie ahead.

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Adler Pollock & Sheehan P.C.

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