Anti-union challengers are on the verge of victory at Supreme Court

Richard Wolf | USA TODAY

WASHINGTON — Dianne Knox describes herself as "a child of the '60s." Pam Harris grew up a butcher's daughter in a proud union household. Rebecca Friedrichs was secretary of her local teachers' union. Mark Janus supports the rights of workers to organize.

But as the lead plaintiffs in four successive Supreme Court cases challenging the power of public employee unions, Knox, Harris, Friedrichs and Janus take pride in helping conservative groups reach a tipping point in their decade-long, anti-union campaign.

What Knox in 2012, Harris in 2014, Friedrichs in 2016 and Janus in 2018 have done is put the justices within one vote of overruling a 40-year-old precedent that allows the unions to collect fees from non-members for the cost of representation. In a case that will be heard this month, the court appears to have that additional vote in the form of Justice Neil Gorsuch.

A 5-4 decision against the unions would free about 5 million government workers, teachers, police and firefighters, and others in 22 states from being forced to pay "fair share" fees — a potentially staggering blow to public employee unions.

The challengers' battles against the Service Employees International Union, the National Education Association, the American Federation of Teachers and the American Federation of State, County and Municipal Workers are based on disagreements with the political and policy priorities of the national leadership.

“This is not my father’s or my grandfather’s union," says Harris, recalling the Amalgamated Meat Cutters to which they belonged. “This is a money-making scheme. It is a way to advance political agendas.”

Union leaders see the opposite — a power grab by what they call corporate billionaires and right-wing special interests to cripple the unions standing in their way.

"It is a defunding strategy," Randi Weingarten, president of the American Federation of Teachers, said at a press conference with other union leaders Wednesday. "They want the economy to be further rigged in their favor."

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It's no coincidence that the four cases have emerged from California and Illinois, states with strong public employee unions and strained state budgets. They are among 22 states without so-called "right-to-work" laws, which make union membership and contributions voluntary.

Already in the 22 states, workers do not have to contribute to the unions' political activities. A ruling by the Supreme Court that they do not have to contribute anything at all could save objecting workers $1,000 or more annually — at a huge cost to unions.

“The point is, who decides whether the union is worthy of their support — the workers themselves or the state on their behalf?" says Jacob Huebert, director of litigation at the Liberty Justice Center, which is representing Janus. "The First Amendment should be a non-partisan issue.”

From Knox's relatively lonely effort in 2012 to Janus' potentially landmark case this year, the legal fight has gained adherents on both sides. Only three friend-of-the-court briefs were filed at the Supreme Court in 2012. The number grew to 17 in 2014, 48 in 2016 and 67 this year.

Two early victories

Knox's beef with the unions dates to 2005, when the SEIU established a "Political Fight-Back Fund" to oppose an effort by then-governor Arnold Schwarzenegger to reduce the clout of California's public employee unions. Even non-members were expected to contribute.

“I’m sure in a lot of places, they do good," Knox says. "But I don’t think we should be required as a condition of employment to pay for a union.”

Seven workers, with Knox in the leading role, sought help from the National Right to Work Foundation. They eventually won a 7-2 verdict from the Supreme Court in 2012; Justice Samuel Alito said the union didn't inform workers of their right to refuse payment.

“My little case," says Knox, now 70 and retired in Sacramento, "opened the door for these other cases.”

Harris — not your typical union-buster — was next. She met her husband at a Democratic fundraiser for former Chicago mayor Richard M. Daley. But she registered as a Republican during her legal fight against Illinois' effort to unionize home-care workers.

At 59, Harris spends her days caring for her 29-year-old son Josh, who has a rare physical and cognitive disability called Rubinstein-Taybi syndrome. She is paid out of her son's Medicaid waiver, which is slightly more than $2,000 a month.

"My employer is not the state. My employer is Josh," Harris says. "The union had no business taking our sons' and daughters' Medicaid dollars.”

The Supreme Court sided with her in 2014, ruling 5-4 that home care workers paid by Medicaid rather than the state should not have to contribute to the local union. But the justices limited their ruling to Harris and other home care workers, leaving intact the unions' right to collect fees from most non-members.

In his majority opinion, Alito cited the "bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support." His words signaled that the court's majority might be willing to go further in a subsequent case.

A tie vote's aftermath

That case came two years later, courtesy of Friedrichs, an elementary school teacher in Anaheim, Calif. She says she grew disenchanted with the California Teachers Association when it refused to let teachers in her school district consider a pay cut to avoid layoffs.

"I actually love unions. I love the local association," says Friedrichs, 52. On the other hand, she says, "the state and national level are completely tone-deaf. They're out of touch with us. They could care less what we really want."

Her challenge looked like a sure winner during oral arguments in January 2016. "Everything that is collectively bargained with the government is within the political sphere, almost by definition," Justice Antonin Scalia said.

But a month later, Scalia died, leaving the court deadlocked and only able to let a lower court verdict against Friedrichs stand. The unions had dodged a third bullet.

The current case grew out of that near-miss and returned the dispute from California to Illinois, where Janus works as a child support specialist.

Like his predecessors, the 65-year-old claims no malice toward unions. But he says their pay and benefit demands have helped put Illinois in dire financial straits, with the lowest credit rating in the nation.

"I don’t oppose the right of workers to organize,” Janus says. "But it ought to be up to the workers to make that decision. ... All I’m trying to do is level the playing field and let the worker decide whether they want to join.”

Two years ago, Janus waited in freezing weather outside the Supreme Court to hear the oral argument in Friedrichs' case. Now Friedrichs plans to return the favor.

"If we do win, I’m going to help restore workers' rights in this country," Janus says. "I’m very proud to be a part of that."