The U.S. Supreme Court today ruled today in a 5-4 decision that “agency fees” for public sector unions are unconstitutional. These are fees deducted from the wages of public sector employees who do not join a union but whose jobs are included in units represented by the union. They are often called “fair share” dues because these employees benefit from the contracts negotiated by the union even though they do not join the union. In reaching this decision, the Supreme Court reversed one of its prior decisions that specifically upheld such fees 41 years ago.
This decision is highly political and has little to do with actual Constitutional principles. A similar case was brought two years ago and ended in a deadlocked court after Justice Scalia died. Then the Republicans in Congress refused to fulfill their clear Constitutional duty and even consider the President’s Supreme Court nominee for more than a year. Had that justice been seated, the outcome of this case would no doubt be the opposite conclusion and agency fees would continue to be permitted. Instead, the current President nominated Neil Gorsuch, a judge with a proven track record hostile to workers and their rights. The result is a clearly political decision that is nothing more than an assault on public sector employees.
The Supreme Court’s decision today means that dues can only be deducted from the wages of public sector employees who have authorized such deductions. This means that unions will need to convince employees to join and voluntarily support them instead of relying on automatic deductions.
Here at Minnillo & Jenkins, we represent several public sector unions, including the Cincinnati Organized and Dedicated Employees (CODE). CODE represents nearly 1,000 Cincinnati professional employees such as engineers, architects, IT professionals, and pharmacists. Unlike most other public sector unions, CODE is not affiliated with a national or statewide organization and does not support a bloated bureaucracy or any political parties. As a result, its dues are much lower than other unions, and it is 100% locally controlled by the representatives elected by the membership.
The City of Cincinnati provides a good example of the contrast between different unions. The dues paid by Cincinnati employees who are members of AFSCME (one of the defendants in the Janus case) are approximately double the dues paid by CODE members despite the fact that, on average, CODE members earn much more than AFSCME members. This means that Unions like CODE represent a strong value proposition for their members and are in a good position to make the case for continued support.
The Supreme Court’s decision is a challenge for large organizations like AFSCME and national teachers unions. Indeed, these organizations were the targets of the politically motivated litigation that led to today’s decision, which proponents hope will cut off or reduce the political money available to such groups. In contrast, organizations like CODE are smaller, local, directly accountable and highly responsive to individual members. We expect CODE and organizations like it to thrive and even grow as they respond to today’s decision by going directly to their members and making a strong case for continued support.
Content written by attorney Christian A. Jenkins