Janus Case Only Beginning for Forced-Dues Fights

Labor watchdogs expect unions to continue collecting from unwilling members

March 5, 2018

The Supreme Court may do away with judicial approval over mandatory union payments in a landmark case, but labor watchdogs say such a ruling will not stop unions from attempting to preserve collections from unwilling members.

The justices are weighing whether to overturn 40 years of precedent allowing government agencies to mandate union fees and dues as a condition of employment in the Janus v. American Federation of State, County, & Municipal Employees case. The Court deadlocked on a similar case in 2016 following the surprise death of Justice Antonin Scalia, but labor watchdogs are hopeful Trump appointee Neal Gorsuch can deliver the tie-breaking vote, though Gorsuch did not speak during oral arguments in February. A ruling in their favor, however, does not mean that forced unionism will come to a sudden end, as recent history has shown according to labor observers.

Ron Conwell expected to sever his ties to the National Education Association after Gov. Rick Snyder enacted right to work in 2013. One of the first things the Army veteran had to do when he took a job as a teacher in 2001 was sign up for the local union. He grew up in a union household, the son of a UAW-member father. The idea of automatically signing up, rather than opting in, rubbed him the wrong way.

"I would have rather researched it first because I didn't want my voice commandeered," he said. "I don't have a problem with a local union—it makes sense for a group of people to get together and take a collaborative approach to negotiating, but I found some of the things contrary to my fundamental beliefs."

He vowed to withdraw his financial support of the union upon the enactment of labor reforms but claims in a lawsuit that he has been blocked from doing so by the union. The Clarkston chapter of the NEA and school district negotiated the extension of mandatory agency fee payments until 2016—even after the original contract expired in 2014. Right-to-work laws allow the enforcement of forced-dues clauses negotiated prior to their enactment, but workers should be allowed to opt-out as soon as existing contracts expire. Conwell said the union's use of extensions violates his rights as a worker.

"It was all a concerted effort on their part to maintain their membership even after right to work. It was very disheartening for me as someone looking to exercise my rights," he said. "They've shown a dogged resistance to accepting the law."

The state teachers' union did not respond to request for comment.

Other states have seen similar instances of unions attempting to undermine worker opt-out clauses in the wake of legislative labor reforms or adverse court rulings. Labor organizations have created work-arounds to discourage withdrawal, such as ID requirements, small windows of opportunity before reenrollment, and filing lawsuits to hinder worker outreach.

Ben Johnson, the former head of the Vermont AFL-CIO, said he is not surprised labor organizations respond defensively to interruptions to dues and fee collections. He said unions have "come to rely so thoroughly" on mandatory payments that it has affected their approach to workers.

"There's no doubt unions would be radically different if they always had developed in a voluntary system," he said. "Decades of living off of guaranteed income [from fee payers] leads you to take workers for granted."

Other labor watchdogs are preparing for life after the Janus decision. Akash Chougule, spokesman for the pro-free market Americans for Prosperity, said the organization is already gearing up for worker outreach and education events in advance of the "monumental" decision allowing public sector workers to withdraw from mandatory systems.

"Worker freedom is not self-executing. Unions will do all they can to stand in the way of workers exercising their newfound freedom," he said. "It will be incumbent on AFP and our allies, friends, and neighbors across the country to educate workers about what this case means."

The Supreme Court is expected to release its decision in June.