Category Archives: AFSCME

Janus and fair share fees: The organizations financing the attack on unions’ ability to represent workers

Source: Celine McNicholas, Zane Mokhiber, and Marni von Wilpert, Economic Policy Institute, February 21, 2018

From the press release:
In a new paper, EPI Labor Counsel Celine McNicholas and research assistant Zane Mokhiber report that the Supreme Court case Janus v AFSCME Council 31, along with previous cases challenging unions’ right to collect “fair share” fees from nonmembers, have been financed by a small group of foundations with ties to the largest and most powerful corporate lobbies. Analyzing Internal Revenue Service documents, the authors find that several of the foundations supporting anti-union litigants share the same donors—including the Sarah Scaife Foundation, The Lynde and Harry Bradley Foundation, the Ed Uihlein Family Foundation, and the Dunn’s Foundation for the Advancement of Right Thinking.

Working people who choose not to join their workplace’s union, but are still covered by a collective bargaining agreement, do not pay union dues. Instead, they pay “fair share” fees to cover the basic costs that the union incurs representing them. If the court finds in favor of the plaintiffs in Janus, unions representing public-sector workers could be prohibited from collecting these fees. The authors explain that if this happens, unions will be forced to operate with fewer and fewer resources. This will lead to reduced power—at the bargaining table and in the political process….

Will the Supreme Court deal a blow to trade unions?

Source: S. M., The Economist, Democracy in America blog, February 1, 2018

The court will consider whether unions can require non-member workers to help pay for collective bargaining.

OF ALL the blockbuster cases at the Supreme Court this year, Janus v American Federation of State, County and Municipal Employees (AFSCME) is expected to hold the fewest surprises. Janus, which is due to be argued on February 26th, asks whether public employees who choose not to join their designated union may nevertheless be charged “agency fees” to support collective bargaining. Since 1977, when Abood v City of Detroit Board of Education was decided, it has been acceptable to require non-members to subsidise contract negotiations over their salary, benefits and working conditions, but a no-no to make them pay toward a union’s lobbying or political organising. This compromise was teetering on the edge in 2016 when Justice Antonin Scalia died while a case raising the same question, Friedrichs v California Teachers Association, was pending. Bereft of a fifth vote to seal Abood’s demise, the justices split 4-to-4 in Friedrichs and put the 40-year precedent back on life support. 

The man everyone expects to help pull the plug this time is Neil Gorsuch, Donald Trump’s pick to replace Justice Scalia. Observers think Justice Gorsuch will join his four conservative brethren to say that workers should not be compelled to subsidise union negotiations for higher wages any more than they are required to pay for efforts to elect candidates or advocate for political causes. Undoing that distinction may be how Janus is resolved. But a brief from two libertarian legal scholars, alongside a brief submitted by a bevy of eminent economists, supplies a strong case for preserving what unions call “fair-share fees”…..

Related:
The Eminent Libertarians Who Might Save Public Sector Unions
Source: Rachel M. Cohen, The Intercept, February 2, 2018

The Supreme Court will hear arguments this month in a case challenging the constitutionality of so-called agency fees, payments that workers represented by a union must pay if they do not wish to be dues-paying members. Conservatives have been crusading against these fees for years on First Amendment grounds, and with Justice Neil Gorsuch on the bench, the labor movement’s odds seem grim.

But last month, unions got a surprising lifeline from an unlikely friend: Two prominent conservative legal scholars filed an amicus brief in Janus v. AFSCME, Council 31 — the case before the court — urging the justices to uphold a 1977 decision that ruled the agency fees constitutional…..

33 prominent economists, 3 Nobel laureates to the Supreme Court: The anti-union position in Janus is simply wrong as a matter of basic economics
Source: Dan Jackson, American Constitution Society blog, January 25, 2018

Thirty-six distinguished economists and professors of law and economics including three Nobel laureates, two recipients of the American Economic Association’s prestigious John Bates Clark Medal, and two past presidents of the American Economic Association filed an amici curiae brief to assist the Supreme Court in understanding the free-rider problem at issue in Janus v. AFSCME….

Janus Should Lose, and the Justices Know It

Source: Andrew Strom, On Labor blog, January 31, 2018

Most of the coverage of Janus v. AFSCME, like this recent piece in USA Today, simply (and perhaps correctly) assumes that the five Republican appointees on the Supreme Court will use the case to overturn Abood v. Detroit Board of Education, the 1977 case upholding fair share fees for public sector workers.  But, now that the briefs have been filed, it is more clear than ever that those five Justices will have to put their thumbs heavily on the scale for the petitioner, Mark Janus, to prevail….

Public Sector Union Dues: Grappling with Fixed Stars and Stare Decisis (Part I)

Source: Victoria L. Killion, Congressional Research Service, CRS Legal Sidebar, LSB10042, December 4, 2017

The Supreme Court long ago described the First Amendment’s protection against compelled speech as a “fixed star in our constitutional constellation.” This Term, the Court may decide whether it has steered too far from that shining precept in the area of public employee union dues (or agency fees) in Janus v. American Federation of State, County, and Municipal Employees, Council 31. Specifically, the Court will consider whether to overrule its 1977 decision in Abood v. Detroit Board of Education, in which the Court announced the basic test for determining the validity of “agency shop” arrangements between a union and a government employer. Agency shop arrangements (sometimes called “fair share” provisions) require employees to pay a fee to the union designated to represent their bargaining unit even if the employees are not members of that union. The Abood Court held that these arrangements do not violate the First Amendment insofar as the union uses the fees for “collective bargaining activities” and not “ideological activities unrelated to collective bargaining.” In its October 2015 Term, the full Court heard oral argument on whether to overrule Abood, but ultimately divided four-to-four on this question following the death of Justice Scalia. Now that Justice Gorsuch has joined the bench, it remains to be seen whether a majority of the Court will reaffirm Abood or chart a new course. Part I of this two-part Sidebar provides general background on Abood and the case law leading up to Janus. Part II then discusses the perspectives Justice Gorsuch may bring to Janus and the potential implications of the decision for public sector collective bargaining and compulsory fees more broadly.

Public Sector Union Dues: Grappling with Fixed Stars and Stare Decisis (Part II)
Source: Victoria L. Killion, Congressional Research Service, CRS Legal Sidebar, LSB10041, December 4, 2017

As discussed in Part I of this two-part Sidebar, on March 29, 2016, an eight-member Supreme Court divided equally over whether to overrule its 1977 decision in Abood v. Detroit Board of Education and hold that public sector agency fees violate core First Amendment principles (the Court’s “fixed star”). Earlier this Term, the Court agreed to consider the question again in the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31. Part II of this Sidebar begins with a brief summary of the parties’ arguments in Janus. It then highlights some key statements from the prior decisions of Justice Gorsuch, who is likely to be a critical voice in deciding whether to overturn Abood. The post concludes by exploring the potential implications of the Janus decision.

1,300 Men: Memphis Strike ‘68

Source: The Root and Striking Voices, 2018

….The Root partnered with Striking Voices, a Memphis-based multimedia journalism project, created by journalist and author Emily Yellin, to produce 1,300 Men: Memphis Strike ‘68, an 11-part video series that brings the sanitation strikers’ stories to the forefront where they belong. Yellin, who has written about the South extensively for the New York Times, first interviewed Memphis sanitation strikers 20 years ago. Striking Voices builds on the visionary work of Yellin’s parents, David and Carol Lynn Yellin, journalists who began chronicling the 1968 strike in real time, resulting in a six-year, multimedia, oral, written and visual history archival project, now housed at the library of the University of Memphis. Most of the vivid film footage featured in 1,300 Men was collected by her parents in 1968 as a cornerstone of their pioneering work…..

Agency Fees and the First Amendment

Source: Benjamin I. Sachs, Harvard Law Review, Forthcoming, Date Written: September 22, 2017

From the abstract:
Agency fees are mandatory payments that certain employees are required to make to labor unions. In recent years, the Supreme Court has moved closer to declaring these fees an unconstitutional form of compelled speech and association and may soon invalidate them entirely. The Court – and the scholarship on agency fees – proceeds from the assumption that such fees are employees’ money that employees’ pay to a union. This article argues, however, that this is the wrong way to understand agency fees and for two sets of reasons. One, the Court treats agency fees as employees’ money because fees pass through employee paychecks on the way from employers to unions. But this is simply an accounting formalism required by labor law. Because employees have no choice but to pay the fees, the fact that the fees pass through paychecks is irrelevant for purposes of First Amendment analysis. Instead, under the First Amendment, agency fees are – and must be treated as – payments made directly by employers to unions. And payments made by employers to unions raise no compelled speech or association problems for employees. Two, irrespective of the accounting regime, the article shows why agency fees ought to be treated as union property rather than as the property of individual employees. Unionization, by allowing employees to negotiate collectively, produces a premium for employees covered by union contracts. Agency fees are a small fraction of this union premium. Because it is the union that produces the premium out of which agency fees are paid, and because individual employees would never earn the premium as individuals, the premium and the fees that come out of it should be treated – under the Court’s own cases – as the property of the union that secured them. The article thus provides two sets of arguments with the same fundamental implication: agency fees are not properly understood as payments made by employees to unions, and there is accordingly no compelled speech or association problem with agency fees.

Related:
Janus, Agency Fees and the First Amendment
Source: Benjamin Sachs, On Labor blog, October 5, 2017

Can Labor Still Use the Wagner Act?

Source: Joseph A. McCartin, Dissent, Fall 2017

…. Eighty years after the Wagner Act’s validation, the triumph of collective bargaining in mass production industries seems as ancient as Exodus, and Cox’s optimism as quaint as greeting card poetry. Whereas the industrial Midwest once throbbed with demands for industrial democracy, today its depleted cities continue to bleed jobs and its hinterlands struggle with rampant opioid addiction. Flint, once home to a mobilized working class capable of taming General Motors, is today a desperately impoverished city lacking in decent jobs, whose residents continue to suffer from the aftermath of lead poisoning. Whereas sit-down strikers were protected by Governor Frank Murphy in 1937, today’s Michigan is a “right-to-work” state presided over by Governor Rick Snyder, a venture capitalist whose efforts to wrest local control away from distressed communities led directly to Flint’s poisoning. Little remains of the industrial union movement born in 1937, as private-sector union membership rates today dip toward 6 percent.

Nor is there reason to suppose the Supreme Court will help matters as it did eighty years ago. Today’s Court instead seems bent on interring the last legal vestiges of the New Deal labor order. In the case of Janus v. AFSCME, which the Court will decide in the coming term, the right of public-sector unions to collect “agency fees” from the workers they represent is being challenged. Opponents argue that government workers’ unions are merely political vehicles, and therefore granting them the right to collect agency fees infringes on the rights of workers who might not share the politics of the union that represents them. The case threatens to overturn a forty-year-old precedent, Abood v. Detroit Board of Education (1977), which recognized the unions’ rights to collect such fees in the interest of orderly workplace governance wherever state law allowed the practice…..

Coverage on Janus Cert. Grant

Source: Maddy Joseph, On Labor blog, September 29, 2017

The Supreme Court decided yesterday to hear Janus v. AFSCME. The Court seems poised to hold that agency-fee agreements for public sector workers are unconstitutional. Since the order, reports and commentaries have analyzed Janus‘s threat to public sector workers, and its stakes for U.S. organized labor.

The Chicago Tribune explains that the case began when Illinois’ Republican Governor Bruce Rauner, a former private equity executive, attempted to stop the state from dispensing agency fees to unions, clashing with the state’s Attorney General. The Governor eventually filed the suit that would become Janus, asking a federal court to rule that his actions were valid and that fair-share agreements are unconstitutional. When Gov. Rauner was dropped from the case, Mark Janus and other state employees took over as plaintiffs. The Tribune also has an editorial that supports the union’s argument only on the “narrow” point that “[s]omeone who benefits from a union’s contract negotiations should pay for collective bargaining activities, if not for the union’s political activities.” It notes that an AFSCME loss in Janus would lead to a decline in union membership, like the decline seen “in Wisconsin, with Gov. Scott Walker leading the charge.” ….

Related:

Janus and the Private Sector
Source: Benjamin Sachs, On Labor blog, September 29, 2017

Maddy’s excellent wrap-up of yesterday’s Janus news includes a clip from Slate’s piece “Solidarity’s End.” There, Mark Joseph Stern provides a very useful synopsis of agency fees law, but he also suggests that a Janus decision finding agency fees unconstitutional could easily be exported to the private sector. Here’s how he puts it:

One last point: Janus involves only public-sector unions, or unions composed of state employees. But there is no obvious reason why its logic should not apply to private-sector unions as well.

But of course there is a very obvious reason why the logic of a public-sector holding would not apply to private-sector unions: that logic is the state action doctrine, which limits constitutional restrictions to state actors….

A Primer on the Supreme Court Case That Teachers’ Unions Have Been Fearing
Source: Liana Loewus, Ed Week blog, September 28, 2017

Today, the U.S. Supreme Court officially agreed to review a case on public-employee union fees that could potentially deliver a harsh blow to the nation’s teachers’ unions. You may find yourself asking: Wait, haven’t we been through this? Wasn’t someone named Friedrichs involved? And why is this coming up again? All good questions. Let’s take a look at what’s at stake, and how we got here. ….

Janus v. American Federation of State, County, and Municipal Employees, Council 31
Source: SCOTUSblog, 2017

Issue: Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment…..

Judgment Day for Public Unions
Source: Matt Ford, The Atlantic, September 28, 2017

The U.S. Supreme Court has agreed to hear a case that could deal a serious blow to American organized labor.

Neil Gorsuch Has Web of Ties to Secretive Billionaire
Source: Charlie Savage, Julie Turkewitz, New York Times, March 14, 2017

….With the Senate Judiciary Committee set to take up Judge Gorsuch’s nomination next week, Democrats have based much of their criticism of him on the argument that his judicial and economic philosophy unduly favors corporations and the wealthy. But his relationship with Mr. Anschutz, 77, whose fortune is estimated by Forbes to be $12.6 billion, has received scant attention. The Federalist Society and the Heritage Foundation, which developed the list of potential Supreme Court nominees from which Mr. Trump selected Judge Gorsuch, receive funding from Mr. Anschutz. ….

Bradley Foundation Bankrolls Attacks on Unions
Source: Mary Bottari, Center for Media and Democracy, May 8, 2017

Documents examined by the Center for Media and Democracy (CMD) expose a national effort by the Milwaukee-based Lynde and Harry Bradley Foundation to defund and dismantle unions, the most significant force for higher wages and better working conditions in America. Publicly, the Bradley Foundation spins this agenda as “employee rights.” Behind the scenes, newly disclosed Bradley documents detail an aggressive political agenda….

Gorsuch speech at Trump hotel attracts protests
Source: Josh Gerstein, Politico, September 28, 2017

….Gorsuch spoke as part of a 50th anniversary celebration for the Fund for American Studies, a charitable group that sponsors scholarships and study programs. The organization’s goal, according to its website, is “to win over each new generation to the ideas of liberty, limited government and free markets.” The fund is supported by a wide array of foundations, most of them with a conservative or libertarian bent, including the Lynde and Harry Bradley Foundation and the Charles Koch Foundation…..

The Supreme Court’s Anti-Democratic Feedback Loop
Source: Scott Lemieux, The Atlantic, September 29, 2017

The GOP installs Supreme Court justices over the will of voters. The Supreme Court helps the GOP remain in power. Rinse, repeat.

Will the Supreme Court Ignore Pleading Rules in Janus?

Source: Andrew Strom, On Labor blog, September 7, 2017

Many Court watchers think it is a foregone conclusion that the Supreme Court will grant the cert petition in Janus v. AFSCME, and then overturn the forty-year old decision in Abood v. Detroit Board of Education. While I’m not willing to bet against that, it’s worth noting that to reach that result the Court would need to ignore a series of recent cases requiring plaintiffs to plead facts rather than conclusory assertions….

….In recent years, the Supreme Court has made it easier for defendants in lawsuits to file motions to dismiss. In two cases, Bell Atlantic Corp. v. Twombly, and Ashcroft v. Iqbal, the Court has stated that to survive a motion to dismiss “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” The Court has further explained that “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” When workers have sued their employers, lower courts have often relied on Twombly and Iqbal to dismiss the workers’ claims without allowing any discovery….

….When public employees have sued their employers, the Supreme Court has been quick to assert that it does not want to “constitutionalize the employee grievance.” Yet this seems to be exactly what Janus is asking the Court to do. Janus complains that he does not want to fund AFSCME’s actions as the bargaining agent for him and his fellow employees. But, undoubtedly the great bulk of any agency fees he objects to are spent on those very same employee grievances that the Court has said it does not want to “constitutionalize.” At a minimum, the Court should not allow conclusory pleadings in a bare-bones complaint to form the basis for a decision overturning long-settled law…..