SCOTUS’ Blow to Public-Sector Unions

In the aftermath of a recent high-court ruling, certain unions could set their sights on the private sector.
By: | June 28, 2018 • 3 min read

Its been a busy week at the U.S. Supreme Court. On Tuesday, the high court announced its decision to uphold the administration’s travel ban. Then, on Wednesday, Justice Anthony Kennedy announced he would retire from the court at the end July. Both occupied the headlines on their respective days.

So, you could be forgiven if you were among those who missed SCOTUS’ ruling, also on Wednesday, that states could not force public-sector employees who choose not to join a union to pay an “agency” or “fair-share” fee.

Delivering the opinion of the court, Justice Samuel Alito wrote that such an arrangement “violates the free-speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

Alito acknowledged the impact its Janus v. American Federation of State, County, and Municipal Employees ruling could have on unions.

“We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term and may require unions to make adjustments in order to attract and retain members,” he wrote. “But we must weigh these disadvantages against the considerable windfall that unions have received under [a previous 1977 decision]. It is hard to estimate how many bil­lions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.”

Union leaders, not surprisingly, weren’t pleased by the outcome.

“Today’s Supreme Court decision in the Janus v. AFSCME case is just another attempt by billionaires and wealthy corporate interests to curb the freedoms of working people and strip them of their right to a strong voice in the workplace,” said Office and Professional Employees International Union President Richard Lanigan. (OPEIU represents about 104,000 white-collar workers in both the private and public sectors.)

In her dissent, Justice Elena Kagan wrote that the “First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.”

The ruling, she said, prevents “the American people, acting through their state and local officials, from making important choices about workplace governance.”

Joining the majority were Chief Justice John G. Roberts Jr. and Justices Kennedy, Clarence Thomas and Neil M. Gorsuch. Dissenters included Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

Though the decision is unarguably a blow to unions with a strong presence in the public sector, Drinker Biddle Partner Stephanie Dodge Gournis predicts it certainly won’t be fatal.

Short term, she says, “there will be a lot of scrambling among unions that have a majority of its membership in the public sector. But longer term, these unions most likely will begin to refocus their efforts on the private sector.”

Like businesses in general, she says, unions can be resilient.

Perhaps the biggest takeaway here, she adds, is what this case says about the type of rulings, including those impacting labor and employment, that we’re likely to see from a Gorsuch and post-Kennedy court.

David Shadovitz is editor of HRE. He is also co-chair of the HR Tech Conference and chair of the Health & Benefits Leadership Conference. He can be reached at hreletters@lrp.com.

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