JUDGMENT DAY NEARS ON‘ FAIR SHARE’ FEES

Unions representing government workers bracing for Supreme Court ruling in case of Janus v. AFSCME Council 31

LYNN SWEET  lsweet@suntimes.com | @ lynnsweet

Screenshot 2018-06-04 08.25.05.png

WASHINGTON— The U. S. Supreme Court could decide as early as Monday the landmark Illinois public employee union case, Janus v. AFSCME Council 31, a ferocious legal battle triggered by Gov. Bruce Rauner.

Unions representing government workers in 22 states, including Illinois, are braced for an adverse ruling, expecting to lose the long- standing ability to collect fees from non- members to cover the costs of collective bargaining and enforcing the contract.

The justices are being asked to overturn a 1977 Supreme Court opinion that public employee unions could, without violating First Amendment free speech rights, collect “fair share” or “agency fees” since the unions have a legal obligation to represent all workers, whether or not they chose to be members.

The human face on this case is Mark Janus, a child support specialist at the State of Illinois Department of Healthcare and Family Services.

Employed with the state since 2007, Janus is represented at work by AFSCME, though he is not a union member. His paycheck deducts “fair share” fees, about 78 percent of full union dues.

The timeline details the legal and political events and turning points leading to Janus, providing the context for how one of the most significant labor law cases of the decade ended up in front of the Supreme Court.

The Janus Timeline

The Janus battle did not come out of the blue.

Since 1977, there have been a series of Supreme Court cases dealing with “fair share” or “agency fee” payments. The challenges have been pursued by GOP- leaning conservative legal teams against Democratic allied public sector unions, among the most liberal and politically active in the organized labor family.

May 23, 1977— The Supreme Court established the current law in Abood v. Detroit Board of Education, allowing the collection of fees from union non- members for contract- related costs, excluding lobbying and political expenses.

June 30, 2014— In Harris v. Quinn, an Illinois case, the Supreme Court chips away at Abood during Gov. Pat Quinn’s watch.

The court found home health care workers represented by the Service Employees International Union ( SEIU) were not full public employees covered by Abood.

Jan. 12, 2015— Republican Rauner takes office, replacing Democrat Quinn.

Feb. 9, 2015— Rauner issues an executive order directing the state to suspend deducting “fair share” fees from paychecks and sending the money to the unions. On same day, he files a federal lawsuit in Chicago challenging the constitutionality of the law allowing “fair share” fee collections.

Feb. 13, 2016— Justice Antonin Scalia dies. Senate Republicans block the replacement nominated by President Barack Obama, Merrick Garland.

March 29, 2016— The Supreme Court deadlocks on a “fair share” case, Friedrichs v. California Teachers Association. With the Scalia vacancy, the court at 4- 4 leaves Abood intact.

Sept. 13, 2016— U. S. District Court Judge Robert Gettleman, sitting in Chicago, dismisses the Rauner/ Janus case.

As the case progresses, a judge rules that Rauner does not have standing to bring the case, and eventually Janus is allowed to intervene. The Janus lawyers include the National Right toWork Legal Defense Foundation and the Liberty Justice Center in Chicago.

March 21, 2017— With Attorney General LisaMadigan now also a defendant, a Seventh Circuit Court of Appeals panel— Richard Posner, Diane Sykes and David Hamilton— affirms the district court was correct in dismissing the Rauner/ Janus complaint.

The Janus legal team appeals the Seventh Circuit ruling.

April 7, 2017— The Senate confirms President Donald Trump’s first Supreme Court pick, Neil Gorsuch.

Sept. 28, 2017— With a full ninejustice bench, the Supreme Court agrees to consider the Janus case.

In taking the Janus appeal, the Supreme Court said, “This case presents the same question presented in Friedrichs: should Abood be overruled and public sector agency fee arrangements declared unconstitutional under the First Amendment?”

Feb. 26, 2018— Supreme Court oral argument

The Janus v. AFSCME legal arguments

Is everything a union does political and related to First Amendment rights because the employer is a state or local government setting policy, budgets and taxes impacting union contracts? Janus says yes. AFSCME says no.

Janus said in lower court pleadings that he “objects tomany of the public- policy positions that AFSCME advocates for in collective bargaining and that the union engages in “one- side politicking.”

Also, Janus, in his pleading, said AFSCME “does not appreciate the current fiscal crisis in Illinois and does not reflect his best interests or the interests of Illinois citizens.”

“Abood is offensive to the First Amendment,” Janus’ lawyers write in their Supreme Court brief.

“It permits the government to compel employees to subsidize an advocacy group’s political activity: namely speaking to the government to influence governmental policies.”

“. . . Abood was wrongly decided because bargaining with the government is political speech indistinguishable from lobbying the government,” the brief said.

The Janus brief addresses the current law which calls for the state to bargain with unions.

“To prevail in this case, Illinois must prove it has such a compelling need to bargain with exclusive representatives that the need overrides employees’ First Amendment right not to subsidize those representatives advocacy.”

AFSCME

The AFSCME brief said the Janus assertion that “all collective bargaining is inherently political” is “false— and unsupported by an evidentiary record.”

What, exactly are the AFSCME public policy positions Janus disagrees with?

AFSCME notes that Janus has never said.

On the free speech issue, the AFSCME brief argues, “agency fees pass First Amendment muster because they prevent freeriding, support workplace fairness and maintain labor peace.”

The distinction in Abood “between collective bargaining and lobbying is sound.”

Noting that the unions represent everyone, “the suggestion that collective bargaining is no different from political lobbying cannot be squared with the fact that state law literally requires bargaining to set employment terms.”

As for everything a union does being political, the AFSCME brief disputed that assertion in arguing, “many collective— bargaining topics are ( about) mundane employment conditions . . . generally do not raise matters of public concern, yet consume significant union resources.”

As “public citizens,” they can “express disagreement with the union in public meetings, newspaper editorials, or any other public forum.”