Over the weekend, thousands of public employees are expected to rally in Columbus and at state capitols across the country ahead of a U.S. Supreme Court hearing in Washington Monday.
The case pits an Illinois social worker against a public employee union, but its outcome could have major implications for state and local government workers across the country—including Ohio teachers.
Ohio Federation of Teachers President Melissa Cropper doesn’t mince words when it comes to the latest U.S. Supreme Court case.
“What it effectively does is allow for people to freeload off the system,” she said.
Cropper classified Janus versus the American Federation of State, County and Municipal Employees, or AFSCME, as a right-to-work case.
Right-to-work is law in 28 states, not including Ohio, and Cropper said it allows workers to benefit from union services without paying for them.
Robert Alt disagreed. He is the president and CEO of the Columbus-based think tank The Buckeye Institute for Public Policy
“Ultimately, it’s about protecting the first amendment rights of workers,” Alt said.
The two groups have taken opposite sides in the case that Ohio State University Law Professor Camille Hebert said is one thing for certain: historic.
“This is changing law that has been established law for 41 years,” Hebert said.
Janus v. AFSCME
Janus v. AFSCME started working its way through the U.S. court system in 2015.
The lead defendant, Mark Janus, is an Illinois child support specialist and his workplace is unionized, but Janus doesn’t want to be a member of the union so he doesn’t pay dues.
Alt said Janus is required, however, to pay fees.
“If you’re in a non-right-to-work state, like Ohio, you don’t have a choice,” he said.
Collective bargaining laws in non-right-to-work states allow unions to collect fees to pay for administrative services—like representation in grievance hearings or contract negotiations.
Unions are required to provide those services to all employees in union shops, but Alt said non-mebers don’t have a choice in how the unions use that money.
Which results in Janus’s argument: you can’t separate his fees for union services from the dues that support political activity, like campaigning and lobbying, and that violates Janus’s First Amendment right to free speech.
Past Decisions and Future Predictions
OSU law professor Hebert said the fees have been constitutional since a Supreme Court ruling in 1977 in a case brought by a Detroit teacher.
In 2016, the Supreme Court decided to hear a challenge to that ruling, brought by a California teacher named Rebecca Friedrichs.
“It was argued, it was scheduled to be decided, and Justice Scalia died,” Hebert explained.
The sudden death of conservative Justice Antonin Scalia tied the court’s vote and the fees were upheld, but, Hebert said, things have changed.
“The interesting thing, of course, is the Constitution hasn’t changed between ’77 and 2018,” she said, “just the Justices of the Supreme Court have.”
Justice Neil Gorsuch was appointed by Pres. Donald Trump to replace Scalia and Hebert believes he’ll stick with his fellow conservatives, which could have some far reaching repercussions.
“In every public sector jurisdiction in every state, you could not require a non-member of the union who doesn’t want to pay fees to pay fees,” she said. “Any fees.”
Right-to-Work and the Classroom
Not being able to collect agency fees, that’s a big problem for teachers, said OFT’s Cropper. There is a direct correlation, she said, between her union’s ability to negotiate and what happens in Ohio classrooms.
“Working conditions equate to learning conditions. So, when we’re bargaining for lower class sizes, you know, that’s not just for the benefit of the teacher. That’s for the benefit of the students,” she said.
“When we’re bargaining for higher wages, that’s so you can attract quality people to the profession, so you’re getting the best and the brightest in front of students,” she added.
Cropper pointed to a report from the national publication Education Week to prove her point.
The 2017 Quality Counts report ranks states based on student achievement. Although the publication doesn’t make the connection, 7 of the 8 states with the lowest ranking have right-to-work laws.
“So [right-to-work] weakens unions, which weakens them out of influence that they can have over policy,” Cropper said, “and again, those policy decisions both at a state level and at a local level are critically important to a student’s learning environment.”
On the other side, the Buckeye Institute’s Robert Alt points to growing union membership in a number of right-to-work states, including Michigan where membership grew by more than 1 percent last year.
But so did the auto industry, union leaders say, and that could account for the growth.
Law professor Hebert said it’s likely the court will take Janus’s side, ruling the fees unconstitutional. A monumental shift, she said, in the nation’s labor laws.