After the Supreme Court ruled Wednesday that public employees cannot be forced to pay union fees, labor union leaders in Maryland called it another attack on worker rights and vowed to step up their fights to improve workplaces.
In a setback for the unions, the federal justices overturned a 41-year-old precedent by a 5-4 vote, ruling that the 1st Amendment protects teachers, police officers and other public employees from being required to support a private group whose views may differ from theirs.
The decision, in Janus vs. AFSCME, strikes down laws in Maryland, California, New York and 19 other mostly Democratic-leaning states that authorize unions to negotiate contracts that require all employees to pay a so-called fair share fee to cover the cost of collective bargaining.
“It is very disappointing, but it is not unexpected,” said Adam Mendelson, a spokesman for the Maryland State Education Association. “We have seen corporate interests and extremist political groups fight unions because they know that the unions are a path to the middle class.”
In 1977, the nation’s high court said public employees may not be forced to pay union dues if some of the money went for political contributions. But, at the time, the justices upheld the lesser “fair share” fees on the theory that all employees benefited from a union contract and its grievance procedures.
The current, more conservative court disagreed and said employees have a right not to give any support to a union. These payments were described as a form of “compelled speech,” which violates the 1st Amendment.
“We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern,” wrote Justice Samuel A. Alito Jr. for the majority.
Leaders of the four largest public-sector unions — the National Education Association, the American Federation of Teachers, the Service Employees International Union and American Federation of State, County and Municipal Employees — condemned the ruling but predicted it will become a “rallying point” for workers and unions.
In Maryland, AFSCME represents more than 30,000 workers at state agencies and at colleges and universities, while the State Education Association represents 74,000 teachers. Both unions charge non-members “fair-share” fees, but a majority of employees pay full membership dues, both said.
The unions were allowed to charge the fees under a 2009 law pushed by then Gov. Martin O’Malley, a pro-labor Democrat, and passed by the General Assembly in a party-line vote.
The Janus ruling affects teachers in about half of Maryland’s school systems, Mendelson said. Unlike states where all teachers must join the union, Maryland allows unions to bargain with governments over whether everyone has to pay a minimum. In Baltimore city and county and Anne Arundel, Montgomery, Prince George’s and Howard counties, teachers who don’t want to join the teachers union pay their “fair share” — an amount representing just the cost of contract negotiations for each teacher.
Those “fair share” fee payers don’t get any of the benefits of being a union member. The state teachers union has 3,000 fair share payers and about 18,000 non-members statewide, outside of the city, which has its own teachers union, Mendelson said. The union gets a small percentage of its budget from the fair share fees, he said.
“With today’s ruling, the anti-union and anti-worker forces think they’ve won,” said Marietta English, president of the Baltimore Teachers Union. “They think we are defeated. They couldn’t be more wrong,”
She called the ruling the “latest offensive in the war on teachers and working families.”
AFSCME Maryland, which represents correctional officers, social workers and facility maintenance workers, called the decision a political attack that will hurt millions of working families nationwide. While acknowledging the decision takes money out of its coffers, the union vowed to continue to fight for a fair pay increases and safe staffing levels.
“This is an attempt to put more obstacles in the way of working people and the organizations they democratically elect in order to give them a fair shake in a rigged economy,” said Patrick Moran, AFSCME Maryland president. “We view this as another obstacle in front of us to try to silence fairness and justice in the workplace.”
Moran said it’s too soon to tell whether the change will lead to loss of membership and declined to say how much money was at stake.
“We’ll see,” he said. “We fight every day for every single state employee, whether a member or non-member, because we believe they benefit from having advocates in the workplace.”
When AFSCME first imposed the fee in 2011, it expected to generate as much as $4.7 million a year from the fee of up to $389 charged to non-members.
Lt. Gene Ryan, president of the Fraternal Order of Police Lodge 3 in Baltimore, which represents rank-and-file officers in the city, said police officers aren’t required to join the union and aren’t charged service fees.
The union thought about charging a nominal service fee in the past, he said, but decided against it — in part because the majority of officers already are union members.
“We’ve never had the necessity to charge that service fee,” Ryan said.
The police union does not expect the Supreme Court ruling to have any effect on its membership rolls or dues collection, because its members value the benefits that come with full membership, he said. In 2016, union members voted unanimously to nearly double their dues in order to keep the union solvent and continue footing the massive legal fees for six police officers who were charged criminally in the arrest and death of Freddie Gray.
“They don’t have to join our membership. It’s completely up to them,” Ryan said. “But we do offer great benefits.”
In addition to representation in collective bargaining and pay arbitration, Ryan said those benefits include legal representation for officers facing work-related prosecution or discipline.
“You can ask the Baltimore Six what that would be worth,” Ryan said – referring to the six Baltimore police officers the union hired legal teams to defend in the Gray case. The officers faced serious charges, but none was convicted.
The share of workers belonging to unions has been declining as has the percentage of employees covered by unions, and the court’s ruling likely will accelerate that trend, said Daraius Irani, chief economist for the Regional Economic Studies Institute at Towson University,
“From a labor union point of view, this is the worst thing that could have happened to them,” and will allow non-members to benefit without paying, Irani said. “It could hurt their ability to be financially viable longer term as more people are opting out.”
In the ruling, Alito said the powerful public sector unions have contributed to budget problems in Illinois and other states as well as costly public employees pensions that are badly underfunded. He rejected the notion that employees who do not support the union are “free riders.” Rather, they are “captives” on a trip they do not want to take, Alito said.
In dissent, Justice Elena Kagan accused her colleagues on the right of conservative activism.
“The majority overthrows a decision entrenched in both this nation’s law and its economic life,” she said. “And it does so by weaponizing the 1st Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”
The anti-union National Right to Work Foundation, which funded the challenge, predicted the ruling would free more than 5 million public employees from supporting their unions.
“So many of us have been forced to pay for political speech and policy positions with which we disagree, just so we can keep our jobs,” said Mark Janus, the lead plaintiff and a child support worker in Springfield, Ill. “The right to say ‘no’ to a union is just as important as the right to say ‘yes.’”
The Los Angeles Times and Baltimore Sun reporters Liz Bowie and Kevin Rector contributed to this story.