Will the Supreme Court Unravel Public Employee Unions?

 

Connecting state and local government leaders

The conservative justices seem eager to deal a fatal blow to one of the major constituencies of the Democratic Party.

In Chronicle of a Death Foretold, a 1981 novel by Nobel laureate Gabriel García Márquez, twin brothers in a port village stalk and murder a neighbor for the supposed crime of deflowering their sister. García Marquez’s anonymous narrator, tracing the roots of the crime years later, finds that almost everyone in the nameless town knew that Pablo and Pedro Vicario were planning to murder Santiago Nasar; no one, however, warned the victim or stopped the killers.

Townspeople had different reasons. Some thought the killers were bluffing, or that they changed their minds after a scolding from the mayor. Still others meant to pass on a warning but, distracted by a wedding feast and a visit from the local bishop, simply forgot. A few did not bother because they concluded that the murder was inevitable, and thus the victim was in effect dead already.

The authorities later sent in a magistrate to investigate—but “at the conclusion of his excessive diligence,” the magistrate had not “found a single clue, not even the most improbable, that Santiago Nasar had been the cause of the wrong.”

Even so, “[t]he lawyer stood by the thesis of homicide in legitimate defense of honor, which was upheld by the court in good faith, and the twins declared at the end of the trial that they would have done it again a thousand times over for the same reason.”

This term at the U.S. Supreme Court seems likely to end with an assault foretold—on America’s public-employee unions. It will come in a case called Janus v. American Federation of State, County, and Municipal Employees, Council 31, which was granted review on September 28. Janus challenges—for the third time in five years—the financial stability of public employee unions. By coincidence, these unions are an important pillar of the Democratic Party.

This is a constitutional dispute conjured more or less out of thin air over the past five years by Justice Samuel Alito.

Janus will be the third attempt since 2012 to gut the unions by court order. Formally it poses a First Amendment question; but under the surface, its central issue is whether public-employee unions are helpful labor organizations or baneful big-government lobbies.

That factual question, as we will see below, will be resolved without any factual record whatsoever.  The challengers don’t think facts are relevant—or, perhaps, they regard as relevant only one fact: they think there finally are five votes to attain this long-sought political goal.

The assault foretold began in 2012, with a fairly ordinary labor-law dispute entitled Knox v. Service Employees International Union. To understand Knox and what followed, consider a few details about labor law. Under the National Labor Relations Act, state governments have leeway to structure their relations with their own employees. Some states do not allow their employees to bargain collectively at all; others permit employees to form unions and negotiate, but permit non-members to opt out of the unions altogether; and some—roughly half—permit the employees in a given unit to designate a union as their “exclusive representative,” with authority to negotiate for all the unit’s workers in areas like wages, benefits, working conditions, and on-the-job grievances.

Even in “exclusive representative” states, however, workers can’t be required to join a union. That requirement, the courts have long held, would infringe their First Amendment right of association. However, non-member workers receive the benefits of the union in matters like wages; and thus, in about half of the states, they are required to pay an “agency fee” to the union for those services. This fee is calculated based on a member’s union dues, minus the costs of the union’s “non-chargeable” expenses—overtly ideological activities like political campaigning, legislative lobbying, and litigation for union causes.

In a 1977 case called Abood v. Detroit Board of Education, dissenting Detroit teachers argued that paying an “agency fee” to a public employee union violated their First Amendment free-speech rights, because the funds were used to negotiate with government—an activity that, they said, will always have a political aspect, even when only focused on workplace issues. (Public-employee salaries and pensions, for example, impact overall budget levels; tenure and security rules influence education policy, etc.) Thus, they argued, paying the fees amounted to “compelled speech.”

The Abood court rejected that claim, however. “Such interference [with First Amendment rights] as exists,” it said, “is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” That is, the court reasoned, legislators weren’t wrong to think that a union designated by a majority would make employer-workforce relations smoother. If not required to pay for “chargeable” expenses, the court reasoned, non-members would be “free riders,” profiting from the union’s efforts but refusing to pay for them. In the long run, free-ridership would lead workers to refuse to join the union; this would sap the vitality of the union and thus spoil the state legislature’s chosen scheme for achieving “labor peace.”

Over the next three decades, the court heard challenges to specific public-union expenses, finding some “chargeable” and some not. But states were left to decide for themselves whether to allow public unions and if so how. The question was debated widely, and settled the old-fashioned way: by politics, in front of state legislatures. Some states expanded employee rights, others contracted them. Some states banned collective bargaining altogether; others allowed some employees to form unions and banned organizing by others; some allowed employees to strike under certain conditions, others banned strikes altogether.

Then came the Republican electoral tide of 2010. As University of Toledo law professor Joseph Slater writes, “In 2011, an unprecedented number of states enacted laws limiting or eliminating public sector bargaining rights. Such moves took place in Wisconsin, Ohio, Idaho, Illinois, Indiana, Massachusetts, Michigan, Nebraska, Nevada, New Hampshire, New Jersey, Oklahoma, and Tennessee.”

Anti-union forces seemed to be winning the political battle. It was at precisely this point, however—when the public was deeply involved in wrestling with its complexities—that Alito first suggested that the court decide the issue on its own. In the 5-4 majority opinion in Knox, Alito let the world know that he and his fellow conservatives would like to get rid of “fair share” fees altogether. The Abood court was wrong, Alito wrote: “free-rider arguments ... are generally insufficient to overcome First Amendment objections.”

The message was the judicial equivalent of Henry II’s “will no one rid me of this meddlesome priest?” By 2014, a new case, Harris v. Quinn, materialized. Harris was a challenge to agency fees paid by Illinois home-health aides working in a state-federal program designed to keep disabled people in their homes. Though the union had been authorized by overwhelming vote of the legislature,  and approved by a majority of the workers, Alito said at oral argument that he, for one, smelled not just a rat but a Democrat: “Governor Blagojevich got a huge campaign contribution from the union and virtually, as soon as he got into office, he took out his pen and signed an executive order that had the effect of putting, what was it, $3.6 million into the union coffers?”

In June 2014, the court ruled against the union scheme in Harris. The home health aides were not “full-fledged public employees,” the 5-4 majority said. Alito wrote that opinion too. For people who work in the home, he said, “labor peace” is not important. He cited a provision of the NLRA that bars unions for those in “domestic service.” (He didn’t mention that the provision was added by Jim Crow-era Southern lawmakers who wanted no federal meddling with their black butlers, cooks, and maids.)

The court had not yet gutted union rights for “full-fledged” public workers, however. The apparent chance to do so came in the 2015 term, with a case called Friedrichs v. California Teachers Association. California defended its statute before the court, and 21 other states and the District of Columbia filed a brief supporting the union. At oral argument, however, Republican lawyer Michael Carvin, representing the objectors, assured the court that these states didn’t really want to win the case: “They don't care about how robust or effective this union is,” he said with a straight face. “Indeed, if anything, they don't want them to be effective, because nobody wants a strong bargaining partner that's going to drive up public expenditures.”

Carvin could peddle this eyewash because, at his clients’ insistence, there had been no trial, and there was thus no evidence about the actual benefits, or lack of benefits, from the “fair share” scheme. The anti-union forces had told the courts below to hurry up and rule against them, so they could get to the Supreme Court and win. Friedrichs was to real litigation roughly what the stabbing of Caesar was to parliamentary procedure.

Before the court could announce its decision, however, Justice Antonin Scalia died. In March 2016, the court announced that the surviving justices had tied 4-4, meaning that the four remaining conservatives were probably ready to take down unions even for  “full-fledged” public employees. The tie, however, meant that the union victory in the Ninth Circuit was affirmed. Public employee unions seemed to have dodged their death foretold.

Then Senate Majority Leader Mitch McConnell stepped forward to claim Scalia’s seat as property of the Republican Party. In the spring of 2017, Neil Gorsuch took  the seat his party had withheld from President Barack Obama’s nominee, Merrick Garland. Not long after he took his seat, another “case” materialized, again without a record or indeed a pretense of anything new other than a change in the court’s personnel.

The court has not yet scheduled oral argument. If only García Márquez were living, perhaps he would be able to do justice to the solemn, farcical tone we can expect.

“Fatality makes us invisible,” García Márquez’s nameless lawyer notes. This spring is likely to see a killing that will happen in plain sight, with the long-sharpened knives demurely hidden under the black robes of the law.

Garrett Epps is a contributing editor for The Atlantic, where this article was originally published

NEXT STORY: ‘Farm to Flask’ Distillers Lifting Local Spirits

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.