U.S. Supreme Court’s Free Speech Ruling Seen As A Blow To Massachusetts Unions

Jun 27, 2018

In a major freedom of speech decision on Wednesday morning, the U.S. Supreme Court dealt a blow to public sector labor unions, ruling that public employees cannot be forced to pay fees or dues to a union to which he or she does not belong.

The high court handed down its 5-4 ruling in Janus v. American Federation of State, County, and Municipal Employee on the final day of its session, a ruling in which new Justice Neil Gorsuch appears to have been the deciding vote.

At the Massachusetts Democratic Party's convention earlier this month, House Speaker Robert DeLeo told the hall of roughly 6,000 Democrats that the Massachusetts House is prepared to move quickly to make sure "unions can remain strong."

The case challenged the compulsory payment of union fees for public sector employees, regardless of whether they belong to the union. It revolved around Mark Janus, an employee of the state of Illinois who disagreed with the public sector union's positions and refused to join.

"The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them," Justice Samuel Alito wrote for the majority. "Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay."

Unions say the case was driven by wealthy corporate interests and that the court ruling in favor of Janus would limit the power of 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," Alito wrote. He added, "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."

Writing for the four-justice minority, Justice Elana Kagan said there could be no "sugarcoating" the ruling supported by the court's five more conservative justices and that the First Amendment was "meant not to undermine but to protect democratic governance -- including over the role of public-sector unions."

"The majority overthrows a decision entrenched in this Nation’s law -- and in its economic life -- for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance," Kagan wrote. "And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy."

In a statement released soon after the Supreme Court’s ruling, Service Employees International Union (SEIU) Local 509 President Peter MacKinnon said the ruling was backed by "anti-worker extremists."

"Today, the Supreme Court came down on the wrong side of history in a case that the rich and powerful are hoping will divide us," he said. "But no court case is going to stop us from fighting for the strong unions our communities need."

American Federation of Teachers (AFT) Massachusetts President Beth Kontos said, "Members of the AFT Massachusetts enjoy the strength and solidarity that comes with union membership, and we expect that our membership will continue to grow despite the Janus decision. We will continue to exercise our first amendment right to freely assemble and associate with our co-workers, and we will continue to advocate strongly for full funding and equal access for our public educational institutions."

The ruling was celebrated Wednesday by the National Federation of Independent Business (NFIB), which had filed an amicus brief arguing that the compulsory fees are unconstitutional.

"The Supreme Court's decision in Janus v. American Federation is a major win for the small business community," Karen Harned, executive director of the NFIB Small Business Legal Center, said in a statement. "For too long dissenting public employees have been forced to fund public employee unions that they do not agree with."

The Massachusetts chapter of NFIB tweeted Wednesday that the ruling "helps level playing field for #smallbiz in MA where big labor wields strong influence. Protects 1st Amend rights & preserves voice of #smallbiz that cant afford initiatives pushed by public unions like $15 minwage, pd family/med leave & income tax surcharge."

The American Legislative Exchange Council, an organization that includes nearly a quarter of state legislators across the country, called Wednesday a great day for freedom.

"The Supreme Court finally recognized that it is unconstitutional to force public employees to join or pay dues to a union as a condition of employment," State Rep. Ron Hood of Ohio said in a statement.

Justices Alito, Gorsuch, John Roberts, Clarence Thomas and Anthony Kennedy constituted the majority in the Janus decision and Justices Kagan, Sonia Sotomayor, Ruther Bader Ginsberg and Stephen Breyer were in the minority.

When the Supreme Court last decided a case related to compulsory union payments, it deadlocked 4-4 during the period after the death of Justice Antonin Scalia. After the U.S. Senate refused to hold a confirmation hearing for President Barack Obama's appointee Merrick Garland, President Donald Trump nominated Gorsuch to the court and he was confirmed by the Senate.

On Wednesday, Trump tweeted that the court's Janus ruling was a "Big loss for the coffers of the Democrats!"

Organized labor groups including the Massachusetts AFL-CIO, American Federation of State, County and Municipal Employees (AFSCME), Massachusetts Teachers Association and others are scheduled to hold a 1:30 p.m. conference call with reporters to respond to the court's decision.

"Today's misguided Supreme court decision represents an attack on the freedom and the rights of workers," Massachusetts AFL-CIO President Steve Tolman said. "But what it doesn’t change is that public support for unions is growing. The number of workers who want to be in a union is increasing. And every day, more workers are organizing and voting to join unions."

The Pioneer Institute applauded the court's decision and predicted that it will have a "significant impact" on union political activity in Massachusetts.

"The ruling will have significant impact in Massachusetts, where 18 of the 20 political action committees that contributed the most to candidates for state and county offices were labor organizations, and 85 percent of all PAC contributions went to Democratic candidates," Pioneer Institute wrote, citing data from the Office of Campaign and Political Finance. "Janus will likely result in public employees having to earn membership, which translates to focusing more on issues like pay and working conditions that members care most about, and less on political activity."

Massachusetts Attorney General Maura Healey said the Supreme Court "turned its back on millions of Americans who keep our communities safe, educate our children, and care for our most vulnerable populations."

This report was originally published by State House News Service.