Supreme Court rules against paying for union representation in Janus v. AFSCME

Last Updated Jun 27, 2018 3:23 PM EDT

The U.S. Supreme Court has dealt a blow to public sector unions, holding that government workers who are represented by a union, but choose not to join, do not have to pay to cover the costs of collective bargaining.

The nine-member court ruled 5-4 that such payments, often called "fair-share fees," clash with individual rights. The fees violate "the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern," the majority wrote in its decision in the case, Janus v. AFSCME.

The ruling Wednesday fulfills a longtime wish of conservatives to get rid of these fees, which non-members pay to unions in roughly two dozen states. President Donald Trump tweeted immediately after the decision that "non-union workers...are now, as an example, able to support a candidate of his or her choice without having those who control the Union deciding for them."

His tweet is wrong: Unions were already not permitted to use funding from non-members for political activity, an arrangement that was in place for 41 years. However, the plaintiff in the case, Mark Janus, argued that paying any money to the union that represents him constituted political speech. That's because the union's bargaining for higher wages and benefits on behalf of its members directly affects issues like government spending by his home state of Illinois. This mirrors an increasingly common conservative argument that sees the very existence of unions as inherently political.

The decision, which was widely expected, is likely to devastate funding for public sector unions, including those representing teachers, police officers and municipal workers.  

While workers can choose whether or not to join a union, unions are legally obligated to bargain for everyone in a particular work group. Across the border from Illinois, AFSCME Iowa Council 61 enjoys an overwhelming 83 percent support among covered workers -- but only 29 percent of those workers are dues-paying members, according to On Labor.

The Supreme Court ruled that workers did not have to pay for union representation—but it did not remove unions' obligation to represent those workers. For the worker, this means they can leave the union and save on fees yet still get the pay and benefits the union negotiates with the employer. 

"Unions are the only private organization that are required by law to provide services to every member, whether or not they pay dues," said Susan Schurman, a professor at the Rutgers School of Management and Labor Relations. 

Now it will be up to unions to demonstrate their value to their members if they want to maintain their size and influence. 

"FINALLY! I'm a teacher and have argued for years that this was needed," one commenter wrote online. "Now maybe unions will have to work to...oh...I don't know...actually provide a relevant service to dues payers and EARN the dues," the person said.

Some have already done so, by polling members on their priorities or reaching out to get workers' consent to pay for fees. Until that happens on a large scale, though, there will be an immediate hit to unions, focused on states like New York, California, Minnesota and Illinois. The nation's largest teachers' union, the National Education Association, recently cut its budget by $5 million on the expectation that hundreds of thousands of members would defect. 

Other observers are preparing for "greater instability in state and local workforces," according to the Economic Policy Institute, a pro-labor think tank. The EPI pointed to recent teacher strikes in West Virginia and Oklahoma, where thousands of teachers protested in actions that didn't always have formal union backing. 

"Workers created unions; unions didn't create themselves. In the beginning, unions were voluntary organizations," Schurman said. "Over time they became large and to some extent bureaucratic organizations." 

Now, she said, they will need to be explicit with their members, saying: "We can't be your insurance agent and defense attorney and bargaining agent unless you belong and pay dues."

The Associated Press contributed to this report.