Once again, Indiana is joining several other states to try to convince the Supreme Court of the United States to overturn its own precedent and stop public employees who are not members of the union from having to pay so-called fair share fees.
The nine justices are still reviewing a petition coming from the 7th Circuit Court of Appeals which could change labor union rules. Illinois resident Mark Janus in Janus v. American Federation of State, County and Municipal Employees, Council 31, et al., 16-3638, argues that having to pay a portion of the costs of the union’s collective bargaining and contract administration work violates his First Amendment rights.
Indiana is one of 18 states that have jointly filed an amici curiae brief in support of a pending petition. All but one of the states — Colorado — have passed right-to-work laws.
“It is time to abandon the meaningless distinction between collective bargaining and other political activity,” the states argue in their brief. “In the public sector, core collective bargaining topics such as wages, pensions, and benefits inherently implicate public policy ...”
The Janus case was the first of two union disputes over fair share that have landed at the 7th Circuit this year. In the second case, International Union of Operating Engineers v. Brad Schimel, 16-3834, the union challenged Wisconsin’s right-to-work law that prohibits collecting any fees, including fair share, from non-members.
Different panels heard the cases and each issued a short opinion, less than 10 pages, that upheld precedent. While Janus is waiting for a response from the Supreme Court, the union in the Schimel case has filed for a rehearing en banc.
The question posed by Janus of public union fair share previously has been before the Supreme Court. A group of public school teachers decried having fair share money deducted from their paychecks in Rebecca Friedrichs, et al. v. California Teachers Association, et al., 136 S.Ct. 1083 (2016).
Like Janus, the classroom instructors made a First Amendment argument. They maintained that although they had decided not to join the union, they were still supporting its political speech through their fees for collective bargaining. The non-union teachers argued that public-sector bargaining involved countless matters related to education policy and that unions concede during negotiations, they take positions that may be viewed as politically inconsistent with those of some members.
In its response brief, the union asserted collective bargaining sessions are compelled by statute to focus on “bread-and-butter employment issues.” It is not a “wide-ranging, open, and public debate that the First Amendment traditional protects.” Moreover, employees can still speak against the union.
At stake in Friedrichs was the precedent established in Abood v. Detroit Board of Education, 431 U.S. 209 (1977). There, the Supreme Court held that public sector unions cannot force non-union employees to pay dues, but the workers who did not join the union could still be required to pay for costs associated with wages and working conditions.
Oral arguments were held in January 2016, about a month prior to the death of Justice Antonin Scalia. In June 2016, the Supreme Court issued a one-sentence per curiam decision, noting it was equally divided.
Indiana was a part of Friedrichs. The state joined Michigan and 16 other states in filing an amici curiae brief in support of overturning Abood, again, like in Janus, arguing fees for bargaining violate free-speech rights. On the opposing side, Indiana University Maurer School of Law professor Kenneth Dau-Schmidt was part of a brief in support of public unions from labor law and labor relations professors.
Also, Indiana had a role in the Schimel decision. The unanimous 7th Circuit panel found that Wisconsin’s right-to-work law did not unconstitutionally take the union’s property because the law allows non-members to forgo fair share fees. In its decision, the judges cited Sweeney v. Pence, 767 F.3d 654 (7th Cir. 2014), which upheld Indiana’s right-to-work law that Wisconsin essentially duplicated.
“((T)he International Union of Operating Engineers) points to no intervening developments in statutory, Supreme Court or even intermediate-appellate-court law between Sweeney and today that undermine Sweeney’s validity,” Judge Joel Flaum wrote. “In sum, the IUOE does not provide any compelling reason to revisit Sweeney, and we decline to do so.”•