By TIM ROWDEN
Washington – In a slap in the face to union members, particularly the 43 percent of union households who voted for him, the Trump administration recently announced it would oppose public sector unions in the Janus v AFSCME District Council 31 case currently before the U.S. Supreme Court, reversing the view taken by the Obama administration in the nearly identical Friedrichs v California Teachers Association case.
The Justice Department filed a friend-of-the-court brief against the unions and their members in the Janus case filed by the National Right to Work Committee on behalf of a non-union government employee in Illinois. The brief targets “fair share” or agency fees that require workers in union-represented shops who choose not to join the union to at least pay a marginal fee to cover the cost of collective bargaining, legal representation and other services the union is required by federal law to provide to all workers in the shops.
The Supreme Court heard a similar challenge in Friedrichs in January 2016 and had appeared headed toward ruling the fees unconstitutional when conservative justice Antonin Scalia died unexpectedly and the short-handed court ended up with a 4-4 split. In that case, the Obama administration had filed a brief backing the unions.
Addressing the change of position, Solicitor General Noel Francisco said in the court filing that after the Supreme Court agreed to hear the new case “the government (EDITOR’S NOTE: Now highly partisan and politicized) reconsidered the question and reached the opposite conclusion.”
If the high court agrees with the Trump administration and the anti-worker National Right to Work Committee and kills agency fees – and unions expect it to do so – the decision would convert every state and local government into a so-called “right-to-work” shop. The decision would affect unions representing teachers, police, transit workers, fire fighters and other government employees.
Federal data show unions have approximately six million state and local government worker members, and represent another 900,000 people who, like Janus, are in union shops but are not new members.
‘THREATENS OUR LIVELIHOODS’
AFL-CIO President Richard Trumka blasted the Trump administration’s stand.
“While President Trump boasts his support for working families, his administration is advocating a position in the Supreme Court that disregards decades of settled law and threatens our livelihoods,” Trumka said. “Yet again, his actions are failing his rhetoric and making clear he has no intention of following through on his commitments to working people.
“For more than 40 years…the law recognized unions and employers have the freedom to negotiate agreements under which everybody contributes his or her fair share,” Trumka said. “But now the Trump administration is urging the court to reverse this precedent and undermine working people and their unions.
“This is a shameful political payback to reward those who seek to do working people harm. Arguing against our freedoms at work is not what working people expect of our government. Actions speak louder than words, Mr. President.”
ADMINISTRATION MIRRORING RTW ARGUMENTS
The Supreme Court’s 6-3 majority legalized the agency fees in the 1975 Abood decision, but the Trump Justice Department, mirroring the language of the “right-to-work” crowd, says Abood violates workers’ constitutional freedom of speech rights by forcing them to pay agency fees for union speech they disagree with.
Agency fees cover only costs of contract bargaining and enforcement, such as grievances. But the Trump administration’s brief claims when it comes to the public sector, everything is political and thus covered by the 1st Amendment’s freedom of speech clause.
The Justice Department brief is not part of the upcoming argument of the case. But the justices are expected to pay attention to it.
WITH GORSUCH ON THE BENCH, UNIONS EXPECT TO LOSE
With Trump-named Supreme Court Justice Neil Gorsuch now on the bench, union leaders expect to lose the case, 5-4.
AFSCME is already re-recruiting its members to sign them up despite Janus.
“In any other circumstance, it would be outrageous to demand the benefits of a common enterprise without paying one’s fair share,” Celina McNicholas, an attorney with the Economic Policy Institute said. “Union representation is no different. Eliminating fair share fees protects people who want to get something for nothing and as a result, starves unions.”
PARTNERING AGAINST WORKERS
The Janus case stems from a fight between Illinois’ Republican Governor Bruce Rauner and public-sector unions over his 2015 executive order to stop agency fees. Rauner asked a federal court to declare the fees unconstitutional and support his authority to issue the order.
U.S. District Judge Robert Gettleman in Chicago dismissed Rauner’s complaint, ruling that the governor had no legal standing to bring the case and that the court lacked jurisdiction to decide the matter. But Gettleman allowed state workers who pay agency fees to sue public-sector unions.
J.B. Pritzker, the Illinois AFL-CIO endorsed Democrat challenging Rauner in next year’s election, said Rauner was partnering with the Trump administration to roll back workers’ rights.
“Donald Trump endorsed Bruce Rauner’s lawsuit to obliterate unions and hurt working families across our state and country,” Pritzker said. “After failed attempts to force his special interest agenda on Illinois, Rauner is partnering with Trump to roll back workers’ rights on a national scale. This case could threaten the mere existence of public sector unions.
“There is too much at stake for working families to have their governor and president working against them,” Pritzker said. “As governor, I will always stand with the Labor Movement and fight these attempts to hurt working families.”
(Information from Reuters, Press Associations union news service and the Labor Tribune.)