Labor watchdogs and business groups are holding out hope that the Supreme Court will reverse course after 40 years of allowing government workers to pay mandatory union fees.
On Monday the Supreme Court heard oral arguments in Janus v. American Federation of State, County, and Municipal Employees (AFSCME), a suit seeking to reverse the Court's 1977 Abood decision allowing government agencies to mandate payments to labor organizations as a condition of employment. Illinois state worker Mark Janus sued, arguing that his payments to AFSCME forced him to subsidize political speech with which he disagreed.
"Collective bargaining is the core political activity, which we submit individuals cannot be compelled to support," Janus attorney Bill Messenger of the National Right to Work Legal Defense Foundation said in oral arguments.
The Supreme Court deadlocked on a similar case in 2016 following the sudden death of Associate Justice Antonin Scalia. Daniel DiSalvo, an associate professor in the Colin Powell School at the City College of New York and senior fellow at the pro-free market Manhattan Institute, said the case hinges on Trump appointee Neil Gorsuch. Gorsuch did not ask any questions during oral arguments, but his judicial philosophy indicates he is receptive to the argument that public sector workers should not be forced to pay union fees, according to DiSalvo.
"We didn't get any insight on Gorsuch, who could be the swing vote in this case," he told the Washington Free Beacon. "Justice Gorsuch's past record suggests he will probably side with the other Republican appointees."
Labor watchdogs and business groups say the Court should reverse the precedent allowing government agencies to require workers to pay unions. David Dewhirst, chief counsel at Washington state's Freedom Foundation, said the current system violates a worker's free speech rights. Unions should win over workers by persuasion.
"Being forced to fund union speech violates a fundamental right, and it is a longstanding principle that courts do not assume acquiescence in the loss of fundamental rights," he said in a statement. "If public employees wish to belong to a union, they have that right. But unions should be forced to obtain workers’ permission before they start skimming from their wages."
Unions have defended agency fee payments as a cost of representation. Federal law requires labor organizations to cover all employees regardless of their standing with the union. Workers who opt out of union dues still receive the same pay rates, benefits, and grievance representation as full-paying members. AFSCME president Lee Saunders said the suit sought to divide public sector employees "to rig the economy and destroy our ability to come together in a strong union."
"Our freedom to negotiate better pay, benefits and job security as union members was under attack," Saunders said in a statement. "The other side isn't making a legal argument at all—they're just launching a political attack. They are motivated only by hostility toward public service workers."
Trey Kovacs, a labor expert at the Competitive Enterprise Institute, said the union case is inherently political. Public sector unions are demanding forced payments rather than winning over the support of individual employees.
"No worker who wants to serve the public should be forced to pay union fees against their will and at the risk of losing his or her job," Kovacs said in a statement. "Since collective bargaining in the public sector is inherently political, it is a blatant violation of the First Amendment rights of public-sector workers. Everyone deserves the freedom to choose how they are represented at work and where their money goes."
The Court will rule on the case before it adjourns in June.