Mark Janus and supporters outside of the United States Supreme Court in Washington, D.C., February, 2018.
Mark Janus and supporters outside of the United States Supreme Court in Washington, D.C., February, 2018. Leah Millis/Reuters

The high court's ruling means public-sector workers who don't want to join a union don't have to pay union fees.

Updated: June 27, 2018

As the Supreme Court’s 2017-18 term came to an end, the justices saved what may have be one of their most contentious decisions for last: Whether Mark Janus, a child support specialist from Illinois, must pay fees to the local labor union that covers him under its collective bargaining agreement. On Wednesday, the conservative-majority court delivered a 5-4 affirmative decision in the case, called Janus vs. American Federation of State, County and Municipal Employees. If Janus chooses not to join his public-sector union, the majority held, he can’t be required to pay union fees.

Labor organizers fear unions—and the workers they represent—will be crippled by the call. Among those most likely to be affected are women and people of color, who are overrepresented in state and local union membership. Out of all public sector workers, black women make up the highest share, at 18 percent of the workforce, according to the Economic Policy Institute (EPI).

“This marks a direct attack on black women getting a fair shot in our economy,” said Alicia Garza, strategy and partnerships director at National Domestic Workers Alliance. “We make up nearly one-fifth of public-sector workers, and already face an uphill battle in making strides in every single workplace.”

As the law stands now in 22 states, state and local government employees who aren’t dues-paying members of a union are compelled to pay “fair-share” or “agency” fees for the union benefits they receive. (The other 28 states have “right-to-work” laws, which allow workers to decide whether or not to buy into unions.)

In light of the court’s decision, any “fair share” fees will evaporate. Unions will continue to represent those workers, provide the same support through grievance procedures, and offer the same collective bargaining benefits. They’ll just have fewer resources with which to do it.

“What’s at stake with Janus is state and government workers’ ability to effectively collectively bargain,” said Celine McNicholas, the director of labor law and policy at EPI.

Janus says he’s not anti-union: He opposes the fees on First Amendment grounds, as do the conservative groups that agree with him. Being a part of a union, because of its implications for state budgets and taxation, is a political act; paying fees, therefore, an act of speech. “I really didn’t see that I was getting any benefit [from union membership],” Janus told the Washington Free Beacon in October. “I just don’t think I should be forced to pay a group for an association I don’t agree with.”

According to an analysis by EPI, the decision will have a broad impact on workers nationwide. Of all the public sector workers represented by a union, state and local government workers have the greatest proportional number: Over a third of them, or 6.8 million, are covered by union contracts. For those employed by the federal government, the percentage is only 26.6. That’s compared to 6.5 percent of private-sector workers—though, since their ranks are larger, they still make up the majority of unionized workers overall.

And while the percentages vary widely by state—73.1 in New York, compared to 10.1 percent in North Carolina—the proportion of state and local government workers represented by a union is larger than private sector employees in every state.

(The states with more union representation correspond closely with the 22 states that Janus will impact: The states whose workers are subject to what right-to-work advocates call “forced unionization.”)

Of the millions of state and local workers represented by a union nationwide, almost half of them are teachers and education workers. And this year, they’ve been a particularly active sector. Teachers and public education employees in West Virginia, Oklahoma Arizona, and Kentucky organized to advocate for fair pay, increased education spending, and broader health care coverage. Though much of the groundswell came from the grassroots, union leadership provided strategic support and lobbying might.

“Given everything in the news right now, it will be interesting to see how teachers will be affected,” said Julia Wolfe, a research assistant at EPI and one of the authors of the report. “And how reducing their ability to collectively bargain might lead to future labor unrest.”

Partly because the teachers’ union is made up disproportionately of women, the share of state and local union workers is also women-dominated:

And the share of workers of color in the state and local government union workforce is steadily growing. In 1989, 22 percent were non-white; now, 30.9 percent are, mostly due to an increase in Hispanic and Asian/Pacific Islander workers in unions.

Union power is already waning in America, and McNicholas notes that it’s not hard to imagine the extra strain this decision will put on institutions that are legally bound to do the same work with less money coming in.

Still, union leaders have been preparing for this potential decision for months. “Unions have been proactively looking at ways to communicate with their membership,” said McNicholas. “There are certainly reasons why workers would elect to remain in a bargaining unit even in a situation where they’re no longer compelled to.

But for some advocates, this ruling could push unions into much-needed adaptations.

Or, notes Dave Jamieson in the Huffington Post, this ruling could push unions into much-needed adaptations. “If workers can stop paying fair-share fees, unions will have no choice but to prove their value to those workers,” he wrote.

National Council on Teacher Quality President Kate Walsh reinforced this notion on Wednesday: “Today’s decision… puts the onus squarely on teachers union leaders to demonstrate relevance and value to today’s teachers,” she said in a statement. “Union leaders should use this decision as an opportunity to revisit the reforms they’ve long resisted.”

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