A case involving the Illinois affiliate of the American Federation of State, County and Municipal Employees, Janus v. AFSCME, was heard by the high court earlier this year, with a decision expected in June. The plaintiff, an Illinois state worker whose legal expenses were covered by anti-union interests, claimed that it was an infringement on his First Amendment rights to pay the equivalent of dues even though he opted not to become a member of the Illinois district council.
All Activities Political?
A 1977 Supreme Court ruling known as Abood set out guidelines for what public employees could be required to fund via the agency fees, barring the use of their payments for anything related to political activities, from supporting candidates for office to lobbying. The plaintiff in the case now before the court contends that because he is part of a public-employee union that bargains with the government, all its activities are political, including contract negotiations, and he should not be required to pay for them even though he benefits from the union’s efforts.
The new New York law, agreed to by the State Legislature as part of the budget deal late last month, is crafted in such a way that it could withstand a court challenge even if, as the unions expect, a majority of the Supreme Court rules that agency-shop fees are illegal for public-employee unions. The concern among labor leaders was that a negative ruling might prompt not only agency-fee-payers but some full-fledged members to cease making payments if no longer obligated to do so.
Under the state law, those who didn’t pay dues or their equivalent would still be entitled to wage increases and other benefit improvements negotiated by their unions. They would not, however, be entitled to other key services that many public-employee unions offer, notably disciplinary-arbitration and grievance representation. Those who opted out of paying dues would have to pay for their own lawyers.
‘Only What We’re Required’
“The union is only going to provide the services that we are contractually required to provide,” said United Federation of Teachers General Counsel Adam Ross during an April 5 phone interview. “We’re not going to provide you services we’re not required to.”
He contended that the state law represented “an effort to minimize the services that the union has to provide to people who don’t want to pay their fair share.”
Asked if there was any concern among union lawyers that if an unfavorable ruling was issued in Janus, the anti-union forces would be emboldened to challenge the state’s move to minimize the damage to public-employee-union coffers, Mr. Ross said that because of the way it was structured, “I’m comfortable that nothing in Janus is going to have an impact on this new law.”
District Council 37 Executive Director Henry Garrido said union attorneys were still reviewing the bill, but added, “I think it’s a step in the right direction. Overall the bill covers what we want it to do.”
Question of Fairness
As far as what services would not be offered to nonmembers, he said, “The way I interpreted it, the exclusion has to do [solely] with grievances and [disciplinary] arbitration. Those are very expensive for the union. It doesn’t seem fair that members who are paying dues should subsidize arbitration for those who aren’t.”
State Sen. Diane Savino, a former vice president of a DC 37 local, said what while there had been discussion of removing some other benefits for non-payers, “if you slam the door in their face out of spite, they’ll never want to join the union.”
She added, “Nobody thinks they need the union until they do. Then they become an activist.”