Supreme Court showdown could shrink unions’ power

CHESTER, Ill. >> Randy Clover is something of an anomaly — the president of a union local here that represents Illinois state employees and a Republican precinct leader who voted for President Donald Trump. But he has no doubt about what will be at stake next week at the Supreme Court: the financial and political clout of one of organized labor’s last strongholds.

The court will hear arguments Monday about whether the government employees represented by Clover’s union, the American Federation of State, County and Municipal Employees, must pay the union a fee for representing them in collective bargaining. Conservative groups, supported by the Trump administration, say the First Amendment bars forcing government workers from having to pay anything, and the court has sent strong signals that it agrees with that argument.

If it does, unions like Clover’s stand to lose fees not only from workers who object to the positions they take in negotiations but also from anyone who chooses not to join a union but benefits from its efforts. To hear Clover tell it, the case is the culmination of a decades-long assault against the labor movement.

“The case was started by the governor to destroy unions,” Clover said, referring to Gov. Bruce Rauner, a Republican who has been at war with Illinois’ public-sector unions. “It’s trying to diminish the protections that unions have for their members.”

A ruling against public unions is unlikely to have a direct impact on unionized employees of private businesses because the First Amendment restricts government action and not private conduct. But unions now represent only 6.5 percent of private sector employees, down from the upper teens in the early 1980s, and most of the labor movement’s strength these days is in the public sector.

Groups financed by conservative donors have worked hard to weaken public unions, and denying them the ability to impose mandatory fees on workers has been a long-sought goal. The argument almost succeeded in 2016, when the Supreme Court seemed poised to rule that the fees were unconstitutional.

But Justice Antonin Scalia died not long after the earlier case was argued, and it ended in a 4-to-4 deadlock. The new case, which had been filed in 2015, was waiting in the wings and soon reached the Supreme Court. By the time the justices agreed to hear it, Rauner’s claims had been dismissed, and the case is now being pursued by Mark Janus, a child support specialist for the State of Illinois.

The Supreme Court is back to full strength with Trump’s appointment of Justice Neil M. Gorsuch, and most observers believe the new justice will join the court’s other conservatives to deliver a decision that will hurt public unions.

Janus’ lawyers said the case is about freedom of speech and association. The activities of public unions are akin to lobbying, they said, and so are by their nature political. Forcing unwilling workers to pay for such activities violates the First Amendment, they added, by compelling them to support messages with which they disagree.

“We argue that you shouldn’t have to check your First Amendment rights at the door when you take a government job,” said Jacob H. Huebert, a lawyer with Liberty Justice Center, a conservative litigation group.

Clover and Janus are both represented by Council 31 of the union. But Janus, who works at the Illinois Department of Healthcare and Family Services in Springfield, objects to paying what the union calls “fair share fees” and others call “agency fees.”

“I was forced to pay these fees,” Janus said. “Nobody asked me.”

He added that he disagrees with stances taken by the union. “They use that money in these agency fees to support their different causes and views,” he said.

Two of the biggest employers here in Chester are run by the state, and together they employ about 1,400 union workers. Clover, a blunt and burly 54-year-old who works at a state mental health facility, represents more than 400 of them. Another thousand or so work at a state prison.

If the Supreme Court rules against his union, Clover said, its finances would suffer and its influence would drop. In time, he said, his members’ incomes would fall, and local businesses would suffer.

“It probably would devastate this place right here,” he said, gesturing toward the buffet line at Reids’ Harvest House, a homey restaurant that serves filling meals.

More than 20 states let public unions charge nonmembers fees for work on their behalf. But unions can survive without the fees, Solicitor General Noel J. Francisco wrote in a brief for the Trump administration. “Despite the absence of agency fees, nearly a million federal employees — more than 27 percent of the federal work force — are union members,” Francisco wrote.

Clover, a Republican precinct committeeman in nearby Kinkaid Township, voted for Trump and said he was puzzled by the administration’s position in the case, which he believes is aimed at undermining his union’s effectiveness. “The union’s leadership tries to better the workplace for men and women trying to do their jobs,” he said. “But, unfortunately, I’ve seen the attack of the richer people trying to control everything.”

To decide against the union, the Supreme Court will have to overrule a 40-year-old precedent, Abood v. Detroit Board of Education. The decision drew a distinction between forced payments for a union’s purely political activities, which it held were forbidden by the First Amendment, and ones for more conventional union work, like bargaining, contract administration and representation of workers in grievance proceedings.

“To compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests,” Justice Potter Stewart wrote for the majority. But, he wrote, “such interference as exists is constitutionally justified” to ensure “labor peace” and to thwart “free riders.”

In more recent decisions, the Supreme Court has twice suggested that the line drawn in the Abood decision is flawed and that the First Amendment bars the compelled payments for any activity by public unions.

“Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences,” Justice Samuel A. Alito Jr. wrote for the majority in 2012 in one of the cases, “the compulsory fees constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights.”

Lawyers for the union have urged the Supreme Court to reaffirm the Abood decision and to bar “free riders.” But Janus’ lawyers said that phrase had things backward. “An accurate term,” they wrote in a Supreme Court brief, “would be ‘forced riders,’ as nonmembers are being forced by the government to travel with a mandatory union advocate to policy destinations they may not wish to reach.”

Clover said his union had done invaluable work, notably in ensuring workers’ safety. He gave an example from his workplace, a maximum-security facility that houses mentally ill people caught up in the criminal justice system.

“The only thing we have is our hands to protect ourselves,” he said, “and we have handcuffs we can put on an individual if they are so out of control you cannot control them without somebody facing injury.”

When the state tried to ban the use of handcuffs to transport patients, Clover said, “the union went to battle for us.” The handcuffs stayed.

Janus’ lawyers said that those kinds of negotiations amount to lobbying on questions of public policy and that unwilling workers should not be made to subsidize it.

“Mark Janus and at least 5 million people in 22 states like him are forced to pay union fees out of every paycheck as a condition of their employment,” Huebert said. “That’s a violation of their First Amendment rights of freedom of speech and freedom of association.”