Dear Commons Community,

The U.S. Supreme Court today decided against organized labor, ruling that non-members cannot be forced to pay fees to unions representing public employees such as teachers and police. This decision has the potential to reduce revenue for the unions involved. This ruling affects unions in states and local jurisdictions but not in the federal government.  As reported in various media.

The 5-4 decision in the case, Janus v. the American Federation of State, County and Municipal Employees Council 31, effectively makes much of the public sector a “right-to-work” zone. As a result, millions of public employees will have the choice to no longer support unions that must continue to bargain on their behalf.

Janus, as the case is known, was widely seen as the biggest judicial threat to organized labor in years, if not decades. The ruling in favor of Mark Janus, an Illinois state employee, has the potential to squeeze some of the largest and most powerful unions in the country, reducing their clout in the workplace as well as in national and local politics.

The case centered around what are known as “fair share” or “agency” fees. In the United States, a union must represent all the workers in a particular bargaining unit, even those who don’t want a union. While no one can be required to be a full-fledged union member, many states have allowed for contracts stipulating that all workers in the bargaining unit must chip in to cover the costs of bargaining and representation. These agency fees amount to normal union dues minus the portion that the union would devote to politics.

Janus, a child support specialist with the state’s health department, claimed that having to pay agency fees to AFSCME still amounted to “compelled speech,” even if the money wasn’t going directly to political ends. Under his argument, public sector unionism is an inherently political activity, since the salaries and benefits that the unions bargain for impact state budgets and the use of taxpayer dollars. Therefore, the reasoning goes, public workers should not have to pay any union fees if they don’t want to, on First Amendment grounds.

The original Janus lawsuit was filed by Illinois Gov. Bruce Rauner (R). But a lower court determined that Rauner didn’t have standing in the case because he’s not a union member, so Janus intervened with the help of conservative legal groups. As Janus’ lawyer previously told HuffPost, Janus didn’t want to support AFSCME because the union’s salary and benefit demands for workers like himself “would impose an unreasonable financial burden on the state.”
Even though the Supreme Court had previously upheld the constitutionality of agency fees, in the landmark 1977 case Abood v. Detroit Board of Education, the court’s conservatives upended that precedent with the Janus decision.

Allowing workers to opt out of agency fees leads to what unions call the “free-riding” problem. A worker can choose not to pay them but still reap the benefits of the union’s bargaining and grievance process. A downward spiral can ensue: As more workers decide not to support the union, the union becomes less effective, giving more workers reason to bow out.
“It’s a collective action problem,” Martin Malin, a labor law expert at the Chicago-Kent College of Law, explained to HuffPost earlier this year. “It’s a rational decision ― even for someone who wants to be represented in collective bargaining ― to not become a member, because their dues won’t make any [noticeable] difference, and the benefits of collective bargaining are collective goods.”

This collective action problem already exists in so-called right-to-work states, which bar contracts between employers and unions that require everyone in the unit to pay fees to the union. Twenty-eight states and counting currently have such laws on the books; the Janus ruling will affect the estimated 5 million public sector jobs in the other 22 states and the District of Columbia.

The same conservative groups that have been pushing right-to-work laws around the country have been laying the groundwork for a Janus ruling for years. Their wish nearly came true two years ago, when the Supreme Court considered a similar case involving a group of public school teachers in California.

The 2016 death of Justice Antonin Scalia led to a deadlock on the court, buying unions more time. But the confirmation of President Donald Trump’s Supreme Court nominee, Neil Gorsuch, led to the conservative majority needed to assure a ruling against unions.

The public unions will have to work dilligently to maintain their membership so that the vast majority of public employees continue to pay dues.

Tony