In an ironic twist, the Supreme Court has invoked the first amendment, which guarantees the right to free speech, to weaken workers’ voices at the negotiating table. In June, by a 5 to 4 margin, the Court took away labor unions’ capacity to collect fees from nonmembers. In the case of Janus v. American Federation of State, County and Municipal Employees, the Court shot down a previous, long-standing ruling that allowed labor unions to collect fees for bargaining over compensation (wages, benefits, etc.) and work rules from nonmembers.

All workers represented by a union benefit from their union’s bargaining regardless of whether the workers are members of the union. Consequently, the previous ruling (Abood v. Detroit Board of Education), which dates back to 1977, allowed unions to collect fees related to collective bargaining from nonmembers.

The recent ruling states unions can only collect fees from workers who are union members. Consequently, unions that represent government workers are under the gun to encourage members to continue their memberships and nonmembers to become members.

Contentious ruling

Strong feelings were expressed by those who supported the Supreme Court’s decision and by those who opposed it. Justice Alito, who voted in favor of the ruling, said Mr. Janus “strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghai’d for an unwanted voyage.”

In opposition, Justice Kagan said “There is no sugarcoating today’s opinion the majority overthrows a decision entrenched in this nation’s law — and in its economic life — for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”

Likewise, Danny Donohue, president of the Civil Service Employees Association, said “It’s outrageous that the Supreme Court caved to greedy corporate CEOs and the wealthy instead of supporting the rights of hardworking Americans. Let me be clear. This case wasn’t about fairness or even free speech. It was just another scheme for the rich to get richer by destroying unions and silencing working people. I can tell you right now it’s not going to work.”

Mandatory union fees have been in the crosshairs of conservative groups for years. A couple years ago the Supreme Court heard a case (Friedrichs v. California Teachers Association) similar to Janus v. American Federation of State, County and Municipal Employees, but that case ended in a 4-4 stalemate because it came shortly after the death of Justice Scalia who was expected to vote in favor of ending mandatory union fees. Consequently, the recent ruling was no surprise to labor unions. Andy Pallotta, president of the New York State United Teachers union, said “We knew this was coming. Wealthy special interests have been fighting for years to undercut unions and roll back the benefits earned by working families. Today’s Supreme Court decision in Janus vs. AFSCME shows how far they are willing to go to attack working families. Anti-union forces think they can seize this opportunity to convince our members to abandon our union in an effort to diminish their voice in the workplace and weaken their strength at the bargaining table.”

—

Future of labor unions

As shown in the graph, labor unions have suffered a long-term decline in membership. At their peak in 1954, unions represented nearly 35 percent of all wage and salary workers; today unions only represent about 11 percent. Public-sector (government) unions have fared much better than private-sector unions. Over the last 35 years, the portion of government workers covered by unions has remained relatively stable at about 35 percent while the portion of private-sector workers covered by unions has fallen from 16.8 percent to 6.5 percent

The Supreme Court’s ruling is unlikely to be a mortal wound to labor unions, but it certainly hurts them. Labor unions are fighting back by stepping-up their recruitment efforts and by cutting union services and benefits for nonmembers. For example, the Professional Employees Federation, a union that represents more than 50,000 workers in New York State, has posted the following notice on their web page. “Effective immediately, PEF shall not provide representation to non-members except as required by Civil Service Law section section 209-a, as amended. Namely, PEF shall not provide representation to non-members: (i) during questioning by the employer, (ii) in statutory or administrative proceedings or to enforce statutory or regulatory rights, or (iii) in any stage of a grievance, arbitration or other contractual process concerning the evaluation or discipline of a public employee where the non-member is permitted to proceed without the employee organization and be represented by his or her own advocate. PEF will not provide representation in the above-referenced matters unless the individual is an active, dues paying PEF member at the time of the conduct which is the subject of the questioning, proceeding, conduct, evaluation or other action at issue, and remains an active dues paying PEF member during the course of the representation.”

Social media might also fill some of the void left by the decline of organized labor. The recent teachers’ strikes in West Virginia, Oklahoma, Kentucky, Arizona, Colorado, and North Carolina were initiated by teachers’ grassroots organizing on Facebook and were later supported by organized labor.

Still, we should all be concerned when the first amendment and the right of free speech are used as weapons to silence workers and labor unions. Who’s next to be silenced?