Will Supreme Court case lead to a post-union America?

Robert Esparza has had a front-row seat to the decline of unions in Texas. When he joined the Local 66 ironworkers chapter here out of high school, there were roughly 1,200 other members who would get close to 90 percent of the work in the region. Forty-one years later the union only has 350 members, who get about 10 percent of the work – non-union workers, many working for a fraction of what unionized ironworkers get, are taking the rest.

“We’re kind of like a secret, really, nobody knows too much about us,” says Mr. Esparza, who is now the business manager and financial secretary-treasurer for Local 66. “We do go out there and market ourselves, but it’s tough because the thing is there are guys out there doing our type of work for half price.”

Unions across the country have been steadily shrinking for decades – 10.7 percent of the US workforce were union members in 2017, according to the Bureau of Labor Statistics, a little more than half of what it was in 1983. As a result, they have lost much of their power in collective bargaining and politics, observers say.

The US Supreme Court has played a significant role in eroding the power of unions, and Monday morning the court heard arguments in a case that union supporters and legal experts say could send public-sector unions into “a death spiral.” The precedent at issue in the case – whether a government employee in a unionized profession can be required to pay a fee to help cover the union’s collective bargaining costs, even if they’re not personally a member – is one that some of the court’s conservative justices have wanted to overturn for years. Given the expansive interpretation of First Amendment rights the high court has taken during Chief Justice John Robert’s tenure, today’s case is likely to give them the opportunity to do just that.

“This case hits a sort of vulnerable point in the labor law machine,” says Cynthia Estlund, a professor at the New York University School of Law who specializes in employment and labor law.

Over recent decades the Supreme Court has narrowed the kinds of fees a union can require non-members to pay. Unions can no longer require non-members to pay fees that support political activities, for example. Until now, so-called “fair share fees” that fund basic negotiations over the terms and conditions of employment like wage levels and pension contributions were allowed.

“Now they’re challenging that,” says Professor Estlund, by arguing that that kind of negotiation “is speech on public issues to which we object and we don’t want to contribute to.”

“Nobody knows for sure how devastating [that decision] will be, but it’s a potentially an existential threat for unions to be able to carry out their function,” she adds.

The $45-per-month at the heart of the case

The case has been brought to the court by Mark Janus, a child-support specialist in Illinois’ Department of Healthcare and Family Services. The $45 monthly fee he pays to his local branch of the American Federation of State, County and Municipal Employees (AFSCME) violates his First Amendment rights, he argues, because the fees “support speech designed to influence governmental policies” on issues such as wages, pensions, and benefits for state employees.

“Every employee who did not choose to subsidize the union,” Mr. Janus adds in his petition to the court, “is being deprived of his or her fundamental right to choose which speech is worthy of his or her support.”

To remedy the infringement, he is asking the court to overturn a precedent set in the 1977 case Abood v. Detroit Board of Education. The justices then decided that public sector non-union members can be compelled to pay such fees in part to avoid “free riders” being able to opt out of paying fees while still benefitting from the union’s collective bargaining efforts.

It is an argument the Supreme Court has heard several times in recent years. Four years ago the court heard a similar case, and while the decision itself didn’t touch Abood, the majority – made up of the court’s five conservative justices – described the decision as “questionable on several grounds.”

Two years later, in a case brought by a group of California public school teachers, the court seemed poised to reverse Abood. A few weeks later, however, Justice Antonin Scalia passed away and the court deadlocked, 4-to-4.

Likely to be the key vote in the case is Justice Neil Gorsuch, who replaced Justice Scalia after an ugly and unprecedented political battle that saw Republicans block hearings for President Obama’s nominee, Judge Merrick Garland, for almost 300 days.

“What we’re talking about here,” said Justice Anthony Kennedy to David Frederick, the attorney for the AFSCME, “is compelled subsidization of a private party, a private party that expressed political views constantly.”

“Throughout history, many people have drawn a line between a restriction on their speech and compelled speech,” Justice Samuel Alito told Mr. Frederick a few minutes later. “When you compel somebody to speak, don’t you infringe that person’s dignity and conscience in a way that you do not when you restrict what the person says?”

Roberts court's expanded view of free speech

Samuel Paz is hoping to become an apprentice in the local union for plumbers and pipefitters in San Antonio. Sitting outside the union office last week, he says he would be happy to pay dues.

“The union will help you get a job, help you get a career,” he adds. “If my family was being provided for and, you know, I actually liked what I was doing, I wouldn’t really see a problem with it.”

That is not the feeling of workers like Janus, however. When the AFSCME was in negotiations with Illinois Gov. Bruce Rauner recently, his petition notes that, despite “Illinois’ precarious fiscal situation,” the union made demands that would cost the state tens of millions of dollars. Thus, he argues, agency fees “remain the largest regime of compelled speech in the nation.”

From the Citizens United decision in 2010 that defined political spending as protected speech to a 2012 decision that lying about receiving military awards is also protected speech, the Roberts court has taken an increasingly broad view of what qualifies as “compelled speech.”

“This is a court that has time and again valued free speech over countervailing state concerns that might restrict free speech,” says Steven Schwinn, a professor at the John Marshall Law School in Chicago.

“The converse of that, applicable in Janus, is that compelled speech you disagree with is not allowable,” he adds.

If, as expected, the court sides with Janus and overturns the Abood decision, the consequences for both public and private unions around the country could be severe, some experts say.

“Unions are already weak, and they’re going to get weaker” with that decision, says Angela Cornell, director of the Labor Law Clinic at Cornell Law School in Ithaca, N.Y.

“We know from empirical evidence a substantial number of members aren’t going to pay,” she adds. “And it’s not because they don’t support a union, but because they know a lot of their other colleagues won’t pay, so why should they pay?”

For example: A 2015 analysis of four Midwestern states that had passed “right to work” laws – laws that exempt workers from paying any kind of union fees – found that the percentage of “free riders” in unions generally increased after the laws were passed.

These subsequent “free rider” concerns, she continues, would have an additional, and somewhat ironic, effect in that “the First Amendment right and the freedom of association [right] of the collective, the vast majority of public sector workers who voted to be represented in a union, will be substantially undermined.”

Others argue that the effects could be more limited. “The most obvious outcome” of that decision seems to be that unions would lose dues-paying members and therefore lose influence, says Daniel DiSalvo, a senior fellow at the Manhattan Institute and an associate professor of political science at the City College of New York. Public unions could retain political power by following the footsteps of some large private unions – such as The American Federation of Labor and Congress of Industrial Organizations, for example – that have been able to maintain some political influence through their committed members and advocacy for improving worker incomes and fighting inequality.

“Extra investment … from a smaller membership will keep them as relevant and strong in politics as they’ve been,” Professor DiSalvo adds.

Roberts echoed this point during the argument, suggesting that “the need to attract voluntary payments will make unions more efficient, more effective, more attractive to a broader group of their employees.”

At Local 66 in San Antonio, Esparza is breaking down the dues and benefits members get with a bandaged index finger. Members pay $47 per month in dues, but with many of them making upward of $3,000 a week he doesn’t think it’s much of a burden for them. Ironworking is more lucrative work than the child-support services Janus provides, but Esparza says he’s seen the benefits union membership has had, even as he’s watched his union’s membership decline.

“You work hard, you’re safe, you’re productive, you’re just a good worker, you can make a 30-year career out of it,” he says.

“I always tell the guys: Save some money because something that good doesn’t last forever. It might be over next week,” he continues.