Ruling due on Illinois-based Supreme Court case on union 'fair-share fees'

Ruling due on Illinois-based Supreme Court case on union 'fair-share fees'

A Supreme Court case that began in Illinois could be decided as early as today — and may deal a crippling blow to public-sector unions.

For Mailee Smith, a staff attorney at the Illinois Policy Institute, "this case is about fairness to government workers and First Amendment freedom. This is about restoring the people's choice of where they want their money to go. It shouldn't be seen as nonmembers' fault. Workers should be able to represent themselves."

But Anders Lindall, spokesman for AFSCME, which represents about 75,000 workers in Illinois, countered that the system currently in place is already fair to nonunion workers.

"In a public-sector workplace where members have voted to be represented by the union, the union is expected to represent everyone equally," he said. "Everyone benefits from the contract, from the fair-wage increases, the affordable health care, the fair procedure for solving disputes. Everyone benefits, so everyone should pay."

Gov. Bruce Rauner launched the case, Janus v. AFSCME, shortly after he took office in 2015 by filing suit to challenge "fair-share agreements," where unions collect fees from nonmembers who work under a contract the union negotiated. Rauner argued that the fees are a violation of the First Amendment right to free speech because the union can use the money to contribute to political campaigns that workers may not agree with.

Rauner was later found to have no standing to sue and was replaced as petitioner by Mark Janus, a child-support specialist at the Illinois Department of Healthcare and Family Services who is covered by a contract negotiated by AFSCME Council 31 but doesn't think he should have to pay "fair-share fees" — usually lower than regular union dues — because he isn't a union member.

The states are split: Twenty-eight currently have "right to work" laws that do not allow fair-share fees, while the 22 others, including Illinois, Pennsylvania and New York, account for almost half of the total U.S. union membership.

The issue spans decades, going back to the high court's unanimous 1977 decision in Abood v. Detroit Board of Education that set the precedent for fair-share fees. If justices side with Janus in this case, it would dismantle that framework.

There's no telling right now which way the court will rule. When a similar case filed in California reached the high court in 2016 after the death of Justice Antonin Scalia had left it one member short, justices deadlocked 4-4, leaving the current system in place. This ruling will include the vote of Justice Neil Gorsuch, who was nominated by President Donald Trump and confirmed as Scalia's replacement.

University of Illinois labor Professor Robert Bruno, who recently conducted a study on the effects of the decision, said he found that it could represent the "largest change to collective-bargaining rights in the U.S. in decades," resulting in serious changes for the over 34 percent of public-sector workers who are members of a union.

Bruno, director of the Labor Education Program at the School of Labor and Employment Relations, argues that a ruling overturning the Abood decision would result in a reduction of wages for public-sector workers — specifically, for those in state and local government, an average decrease of 3.6 percent, or about $1,180 annually — and an estimated drop in total annual economic activity of between $11.7 billion and $33.4 billion.

"If you have fewer people paying dues or fees, that means you have less resources to do stuff like workplace representation," Bruno said. "So you starve the union of resources ... but you do nothing to reduce their burden. So the thought is that unions will have to cut staff, spend a lot less money and still be compelled by law to cover everyone equally."

He said that would exacerbate the free-rider issue and reduce the rate of union membership among state and local government employees nationwide by about 8.2 percentage points, leading to a loss of 726,000 union members. In Illinois, he said, that amounts to 49,000 union members leaving the ranks.

Lindall accused Rauner of trying to drain unions' resources and membership by filing the suit and issuing an executive order — later vacated by a St. Clair County judge — banning fair-share fees,  and said the effort has thus far achieved the opposite effect, with about 2,000 nonmembers who were paying fair-share fees asking to join.

He said AFSCME has a system that sets nonmember payments aside so that they aren't used to fund political advertising.

Smith said the decision would only affect about 4 percent of all public-sector workers in Illinois, and she wants more emphasis on the benefit to the worker, not the possible effects it could have on unions.

"In the scheme of things, the number of workers who will not be paying fees to the union is actually very small," she said. "It remains to be seen how this will impact the unions. But this case is not about union money or about depriving the union of funds; it's about giving workers a choice. If members are pleased with the union, they'll stay."