Is this the end of unions in America? The Supreme Court’s “fair share” ruling in five questions

The Supreme Court ruled that unions cannot charge government workers a “fair share” representation fee, much less union dues. The decision may well be beginning of the end for America’s unions, at least as the political and social juggernauts that we’ve come to know.

1. What’s a “fair share” fee? A “fair share” fee is like dues, but is less than dues. It’s just the portion of dues that represents the union’s cost of representing the workers. A “fair share” fee is often also referred to as a representation fee. Under this ruling a union cannot charge government workers either dues or even just a “fair share” fee.
2. What was the Supreme Court’s reasoning? Because the First Amendment protects a person’s right to choose whether or not to speak in support of various things. The fact that a union might want to use money to support its political agenda for example might be important for the union, it might even be very helpful to the workers, but particular individuals may choose not to support that speech. Therefore the Supreme Court held that a union can’t force government workers to give it money if the worker doesn’t want to support the union’s speech.
3. Why does this apply only to government workers? This case was decided under the First Amendment, which only applies as to governmental action. The First Amendment does not protect workers at private companies. This doesn’t mean private-company employees have no rights, they just don’t have First Amendment rights. Instead, they always have the right under federal labor law to refuse to pay full “dues” and instead can pay the reduced “fair share” representation fee, and in some states with right-to-work laws, they can even refuse to pay “fair share” fees.
4. Why is this case so important? Many commentators think this case signals the end of unionism as America has known it for more than a century. Union representation has been steadily declining for decades. Unions represent only 34% of the government workforce and 6% of the private workforce, with many such private-company workers at construction companies that do work for the government. This case — having given government workers the right to refuse to pay even “fair share” fees — is likely to cause a precipitous decline in the revenue streams for unions overall — the Supreme Court noted these fees have aggregated to “billions of dollars” over the years. The decline in revenue streams is in turn likely to result in a greatly reduced ability for unions overall to support political movements.
5. Can this decision be overruled by Congress? No, only the Supreme Court can decide what the Constitution does and does not permit, so only a future Supreme Court could reverse this decision.

In announcing this highly controversial 5-4 decision, the majority recognized the impact its ruling is likely to have on unions.

We recognize that the loss of payments from nonmem­bers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the consider­ able windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many bil­lions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.

In contrast, the dissent noted that, in order to reach this result, the majority had overruled more than 40 years of precedent.

There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.

Right or wrong, this case is now the Supreme Court’s ruling and likely to have a major impact on unionism in America.

Source: Janus v. AFSCME, case no. 16-1466 (6/27/18).