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Supreme Court takes case posing a threat to unions

U.S. Justice Antonin Scalia's death postponed the time of reckoning for public sector unions whose finances and organizing abilities were threatened by a case involving a California public schoolteacher. Now, a new case is imminent.

AFSCME DC47 president Fred Wright is worried about what the outcome could mean for public-sector unions.
AFSCME DC47 president Fred Wright is worried about what the outcome could mean for public-sector unions.Read moreDAVID SWANSON / Staff Photographer

Out in Indiana County, in the middle of Pennsylvania, art teacher Greg Hartnett, 59, was spending his Thursday morning guiding youngsters at Homer Center public elementary school through their projects, probably too busy with clay and color to hear the news that his lawsuit didn't win the race to the U.S. Supreme Court.

Instead, it'll be a case filed by Mark Janus, an Illinois child-protection specialist, that will make history for its role in determining the future strength of public-sector unions, or the weakness of them.

On Thursday morning, the U.S. Supreme Court announced that it would hear Janus' case.

Janus vs. AFSCME involves public-sector employees who don't want to belong to the union that represents workers in their schools or agencies. These employees don't pay union dues, but they do pay "fair share" or "agency" fees to cover costs of contract negotiations and grievance administration.

Janus and Hartnett don't support unions, they don't want to pay those fees, and they, in separate lawsuits, assert that paying them violates their First Amendment rights of free speech, because they say, the fees are the equivalent of speech promoting unions, and they don't agree.

"I went into this line of work because I care about kids. But just because I care about kids doesn't mean I also want to support a government union," Janus said in a letter published online.

In an interview in August, Hartnett took a similar tack. "I was a little surprised at the compulsory aspect of unionism in Pennsylvania," he said. "I'm about freedom and choice. The union is spending my money in ways I wasn't in favor of."

Court observers expect a decision sometime before the court adjourns in June 2018.

Union leaders are worried about the case for two reasons. If Janus prevails, public-sector unions, which have been the strongest part of the U.S. labor movement, will find themselves financially weakened. And, instead of reaching out to bring new workers into unions, public-sector union leaders have to spend time and resources selling their own members on the value of union membership, especially if Janus prevails. That would mean that public sector employees could still benefit from the services of a union without having to pay for them.

The point is not lost on Mark Mix, president of the National Right to Work Legal Defense Foundation, which is representing Janus. Mix applauded the court's decision to take up the case.

As for the unions, "they're going to have to go out and sell their product to workers, and if they do it, they'll be strong, and if they don't, it'll be, 'What you have done for me lately?'" Mix said in an earlier interview. "I think many workers will decide that their [union dues] are just not worth it."

That's what union leaders are aiming to avoid. In Philadelphia, for example, AFSCME District Council 47 President Fred Wright plans an October training session for union activists to give them talking points when they visit the rank-and-file. "I'm worried," he said.

State of the unions

The last Supreme Court case, making arguments similar to the Janus case, involved a California schoolteacher, Rebecca Friedrichs, and ended in a 4-4 tie in June 2016, four months after Justice Antonin Scalia's death. Since then, a handful of competing cases across the country, including Hartnett's, have been making their way through the appellate system toward the Supreme Court, which now includes President Trump's appointee, Justice Neil Gorsuch.

Public-sector unions have been a source of stability even as union membership has fallen to 14.6 million, with 10.7 percent of workers as members, down from 17.7 million members, or 20.1 percent, in 1983.

Half of the nation's union members work for the public sector, with one in three public-sector employees, or 34.4 percent, represented by unions. By contrast, only 6.4 percent of private-sector workers are in unions.

Arguments from both sides

Not surprisingly, the court's announcement prompted reactions on both sides of the issue:

  1. "With the Supreme Court agreeing to hear the Janus case, we are now one step closer to freeing over five million public-sector teachers, police officers, firefighters, and other employees from the injustice of being forced to subsidize a union as a condition of working for their own government," Mix said.

  2. "Right now, public sector employees in Illinois and many other states aren't given a choice: They're automatically forced to give their money to a union. Janus v. AFSCME presents an opportunity to restore fairness and First Amendment rights to millions of American workers by giving them the right to choose whether to support a union with their money," said Jacob Huebert, director of litigation at the Liberty Justice Center.

  3. "This case is yet another example of corporate interests using their power and influence to launch a political attack on working people and rig the rules of the economy in their own favor," said Lee Saunders, president of the American Federation for State, County and Municipal Employees, AFSCME, the union Janus is suing.

  4. Another Illinois child protection worker, who is, unlike Janus, a union supporter, also weighed in: "This court case is yet another political attack on the freedom of my colleagues and I to speak up to ensure that we can safely and adequately manage our caseloads, which reflects our commitment to safety and public service to our communities," said Stephen Mitton, a member of  AFSCME Council 31.

  5. In Philadelphia, Jeff Price, a Central High School social studies teacher and a board member of the American Federation of Teachers, AFT, sent a statement: "Most people assume that the union only fights for teachers' rights, when in reality, most of our contract is there to protect the basic rights and needs of our students. Those rights are at grave risk in Janus."