“Should Abood be overruled and public sector agency fee arrangements declared unconstitutional under the First Amendment?”
This is the key question that the Supreme Court of the United States considered in the Friedrichs v. CTA case, and will again consider this term in the Janus v. AFSCME case. Abood is the Abood v. Detroit Board of Education case of 1977. In that case the court found a middle ground between members who might object to the political stances of labor unions but benefited from the non-political activities such as contract negotiations, contract maintenance, protecting employees against arbitrary punishments from the employers, providing legal representation in wrongful termination cases or in ensuring due process rights, etc. The court recognized in the Abood case that these union activities had a cost associated to them and therefore established “Agency Fees.” Simply stated, Abood permitted unions to collect fair share dues from members who enjoyed the benefits of being in a union but objected to its political activities. These agency fee payers would receive a refund of the portion of their dues used for political activities. For 40 years this has been the law of the land.
The Bad and the Ugly
Our expectation is that Abood will be overruled by the end of the current Supreme Court Session in June of 2018. Why? Friedrichs, which asked the same question of the court was a 4-4 split. The addition of Justice Neil Gorsuch, who by all accounts and based on decisions he took on the Court of Appeals, is to the right of Chief Justice Roberts and Justice Kennedy, and has already moved the court to the right. So we expect a 5-4 decision to overturn Abood.
What does this mean for us? Much depends on the scope of the decision, but at the very least we must prepare for the following: 1) No more fair share fees from non-members. This would be the immediate result of a decision. The day after the decision is announced, we would lose these fees; 2) Right wing groups like the National Right to Work Foundation are ready to send post cards and other campaign materials to our members encouraging them to drop their membership; 3) A loss of 20% of membership. Based on what we’ve seen in Michigan and Wisconsin, this seems a realistic number. This means locals, CTA and NEA could see a major loss of dues.
How do we prepare for this? The main preparation is what we’ve been doing over the last few years: Membership Engagement campaigns at the local level. When members view their union as an insurance policy, it’s very easy to drop membership. Why pay for something that, perhaps, you’ve never needed, and don't see yourself needing in the near future? Yet, when someone is connected to the union because of a personal relationship with site rep, or the membership engagement team or friends on the bargaining team, dropping membership becomes much more difficult. Membership engagement is relational work. Additionally, we have been trying to create a value driven union. Our locals must reflect what our members are passionate about. Members must connect to the people within our unions and the principles our unions support.
We’ve also been encouraging locals to start thinking about what their budgets will look like with a 20% loss of membership. Even if local leaders are sure that they will retain all of their members, it is better to be prepared with a strategic budget that provides for a worst-case scenario.
Lastly, we need to understand that a Supreme Court decision will establish our reality for the foreseeable future. There are only two ways to overturn such a decision: a constitutional amendment or another Supreme Court case. It took 40 years for the Court’s make-up to change so that Janus could overturn Abood. We should expect to live with Janus for at least the same amount of time.
The Good News
Of course, Janus should be worrisome to all of us who are part of the union movement and members of the union family. And while it’s completely appropriate to be worried and angered about the post Janus world, here is the good news: labor unions existed long before Abood. Not only did unions exist before Abood, but the height of union membership happened at least 20 years before Abood. Simply stated, we thrived before 1977. We can do it again! we simply have to re-learn how to use those muscles. Janus provides us the opportunity to be organizers not just agitators, to be relational with our members not just transactional, to engage with our communities not keep them at arms length, to truly be a movement again, not just an institution.
Now is the time to remember the old union adage: Don’t agonize. Organize!