The U.S. Supreme Court Hears Arguments That Could Curtail Public-Employee Unions

Feb 26, 2018

The U.S. Supreme Court will hear arguments this morning in a case that pits an Illinois social worker against a public employee union. Its outcome could have major implications for state and local government workers across the country—including Ohio teachers. 

Ohio Federation of Teachers President Melissa Cropper doesn’t mince words when it comes to the latest U.S. Supreme Court case.

“What it effectively does is allow for people to freeload off the system.”

Cropper says Janus v. the American Federation of State, County and Municipal Employees, or AFSCME, is a right-to-work case. It’s law in 28 states, not including Ohio, and she says it allows workers to benefit from union services without paying for them. Robert Alt disagrees.

“Ultimately, it’s about protecting the First Amendment rights of workers.”

A historic decision
Alt is the president of the Columbus-based Buckeye Institute for Public Policy, a conservative think tank. The two groups have taken opposite sides in the case that Ohio State University Law Professor Camille Hebert says is one thing for certain: historic.

“This is changing law that has been established law for 41 years.”

Janus v. AFSCME started working its way through the U.S. court system in 2015. The lead defendant, Mark Janus, is an Illinois child support specialist and his workplace is unionized. But Janus doesn’t want to be a member of the union so he doesn’t pay dues. Alt says Janus is required, however, to pay fees.

“If you’re in a non-right-to-work state, like Ohio, you don’t have a choice.”

Right-to-work by another name

'You don't have a choice then on how it is that the unions use that money.'

Collective bargaining laws in non-right-to-work states allow unions to collect fees to pay for administrative services—like representation in grievance hearings or contract negotiations. Unions are required to provide those services to all employees in union shops, but Alt says for nonmembers…

“You don’t have a choice then on how it is that the unions use that money.”

Which results in Janus’s argument: you can’t separate his fees for union services from the dues that support political activity, political activity he disagrees with. And that violates Janus’s First Amendment right to free speech.

But OSU law professor Hebert says the fees have been constitutional since a Supreme Court ruling in 1977. They were challenged by a California teacher in 2016 and, “It was argued, it was scheduled to be decided, and Justice Scalia died.”

Changing justices may mean changing justice
The sudden death of conservative Justice Antonin Scalia tied the court’s vote and the fees were upheld. But, Hebert says, things have changed.

“The interesting thing, of course, is the Constitution hasn’t changed between ’77 and 2018, just the justices of the Supreme Court have.”

'When we're bargaining for higher wages, that's so you can attract quality people to the profession. So you're getting the best and the brightest in front of students.'

Justice Neil Gorsuch replaced Scalia and Hebert believes he’ll stick with his fellow conservatives, which could have some far reaching repercussions.

“In every public sector jurisdiction in every state, you could not require a non-member of the union who doesn’t want to pay fees to pay fees. Any fees.”

That’s a big problem for teachers, says OFT’s President Melissa Cropper. There is a direct correlation, she says, between her union’s ability to negotiate and what happens in Ohio classrooms.

“Working conditions equate to learning conditions. So, when we’re bargaining for lower class sizes, you know, that’s not just for the benefit of the teacher. That’s for the benefit of the students. When we’re bargaining for higher wages, that’s so you can attract quality people to the profession. So you’re getting the best and the brightest in front of students.”

Cropper points to a report from the national publication Education Week to prove her point. It ranks states based on student achievement. Although the publication doesn’t make the connection, 7 of the 8 states with the lowest ranking have right-to-work laws.

“So it weakens unions, which weakens them out of influence that they can have over policy, and again, those policy decisions both at a state level and at a local level are critically important to a student’s learning environment.”

On the other side, the Buckeye Institute’s Robert Alt points to growing union membership in a number of right-to-work states.

Law professor Hebert says it’s likely the court will take Janus’s side, ruling the fees unconstitutional. A monumental shift, she says, in the nation’s labor laws.