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At the U.S. Supreme Court today, a 40-year-old decision is being reconsidered, and the expected outcome could further undermine an already shrinking union movement in this country. The 1977 decision declared that when public employees vote to affiliate with a union, state and local governments can require those who don't join the union to pay partial fees to help cover the costs of negotiating the contract that those non-union members benefit from. Conservative activists and union opponents have long objected to this decision, and today a majority of Supreme Court justices seem poised to reverse it. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: In 1977, the court said that while nobody has to join a union, those who don't can be required to pay partial dues known as fair share, or, agency fees. The purpose is to help defray the costs of negotiating and administering a union contract that covers all employees. The idea is to prevent those who don't want to join the union from becoming free-riders on the backs of union members. The caveat is that non-members do not have to pay for the union's lobbying and political activities. In recent years, however, an energized and more conservative Supreme Court majority has aggressively viewed money as speech. And now it appears close to a decision that would weaken public employee unions by barring these fair share fee arrangements that currently exist in 22 states. Today's case was brought by Mark Janus, a child support specialist for the state of Illinois. He's represented in court by the anti-union National Right to Work Committee, though he stresses that he's not against unions. As he puts it...
MARK JANUS: The problem is that government has given these unions this special privilege to charge us for these fees, in essence, without my permission.
TOTENBERG: In his view, everything the union bargains for and that he benefits from just means more taxes for the public. This is the second time this issue has been argued in two years. The last time, the Obama administration joined with a teachers union and the state of California in urging the justices to uphold the court's longstanding precedent. But the oral argument strongly suggested that the vote would be 5 to 4 to overturn the 1977 decision. When Justice Antonin Scalia died unexpectedly, however, the court deadlocked 4 to 4 on the case. Now the issue is back. The Trump administration has switched the government's position to oppose the unions and the many states that allow fair share fees. And there's every reason to think that Trump appointee Neil Gorsuch will side with the court's conservatives.
To get a feel for the court's thinking, let's go back to the 2016 Supreme Court argument. The union and the state of California contended that fair share arrangements prevent strikes and internal strife by providing a single elected union to deal with, as opposed to competing unions and groups of employees. In many close controversies, Anthony Kennedy is the justice most likely to be open to persuasion, but he's something of a purist on the First Amendment right of free speech. Two years ago, Kennedy disputed the free-rider characterization of those who don't want to pay partial union fees. Rather, he said, the union was making them into compelled riders. He and other court conservatives took the position that everything a public employee union bargains for involves public policy and, thus, that a public employee who disagrees with any aspect of that policy should not be forced to pay for union negotiations. California's lawyer Edward DuMont argued that wages, hours and working conditions are not political. That prompted this from Chief Justice Roberts.
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JOHN ROBERTS: What is your best example of something that is negotiated over in a collective bargaining agreement with a public employer that does not present a public policy question?
EDWARD DUMONT: Mileage reimbursement rates, or how you're going to have public safety...
ROBERTS: It's all money. That's money. If you give more mileage expenses, that costs more money. And the amount of money that's going to be allocated to public education as opposed to public housing, welfare benefits - that's always a public policy issue.
TOTENBERG: DuMont countered that nobody loses his or her right to speak when a democratically elected union represents the interests of all state employees and negotiates a contract with the state. Any employee with a disagreement is free to speak out publicly, he said. Moreover, when the state acts as an employer and not as a sovereign, it should be able to do what private employers do - maximize efficiency by negotiating with a single bargaining unit. That drew this caustic reply from Justice Kennedy.
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ANTHONY KENNEDY: I suppose we could assume that a state is always benefited and is more efficient if it can suppress speech.
TOTENBERG: The court's liberals spoke repeatedly about the importance of consistency in the law. Justice Kagan stressed that the court's general rule is that a 40-year-old precedent should not be overturned without some compelling justification.
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ELENA KAGAN: This is a case in which there are tens of thousands of contracts with these provisions. Those contracts affect millions of employees, maybe as high as 10 million employees.
TOTENBERG: But the conservative justices seemed unpersuaded, professing that overruling the 1977 decision shouldn't change things much. They said that if employees think they've benefited from union representation, they will still pay union dues or fair share fees even if the fee is not mandatory. Despite such assertions, the justices certainly know that unions are faltering in their influence. In the 1950s, 35 percent of the U.S. workforce were union members. Today it's only 10 percent overall. But among public employees, union membership is more than a third. Bottom line? Because states require unions to bargain for and represent all workers regardless of their membership in a union. This case is something of a dagger pointed at labor's heart. Unions fear that if Mark Janus prevails, they would bleed operating funds to the point of ineffectiveness.
There's some evidence to support that notion. The American Federation of State, County and Municipal Employees conducted 600,000 one-on-one interviews with employees covered by AFSCME contracts and found that 35 percent would keep paying dues, 15 percent would not, and half were, quote, "on the fence." If those findings are accurate, a loss in the Supreme Court would mean public employee unions would almost certainly face either some unknown form of transformation or, potentially, extinction. Nina Totenberg, NPR News, Washington.
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