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Legal experts say a challenge of mandatory union fees has a better chance with the addition of Justice Neil Gorsuch.

U.S. SUPREME COURT - U.S. Supreme CourthousePORTLAND — The U.S. Supreme Court has agreed to consider striking down mandatory fees that support collective bargaining by public sector labor unions in Oregon and several other states.

The justices will hear the case of Mark Janus, a child support specialist at the Illinois Department of Healthcare and Family Services, who objects to paying dues to the union.

A decision to strike down the law would reverse a nearly 40-year precedent that the court set in 1977 to permit the mandatory fees.

"The case has the potential to kill public sector unionism as we know it," said Keith Cunningham-Parmeter, a law professor at Willamette University who specializes in labor law. "Mandatory dues are the lifeblood of most unions so if the Supreme Court says that unions can no longer collect those dues, that is going to be a serious cut to the union budgets."

A reversal would likely drain the monetary resources and activities of public sector unions in 22 states, including Oregon, where obligatory fees are legal.

The other 28 states that have "right-to-work" laws that make all union dues voluntary have lower participation rates, according to research by a group of social scientists who support labor unions and filed an amicus brief against another "right-to-work" case last year.

The nation's four largest public sector unions, AFSCME, AFT, NEA and SEIU, criticized the court's acceptance of the case.

"The Janus case is a blatantly political and well-funded plot to use the highest court in the land to further rig the economic rules against everyday working people," they wrote in a joint statement.

"The forces behind this case know that by joining together in strong unions, working people are able to win the power and voice they need to level the economic and political playing field. However, the people behind this case simply do not believe that working people deserve the same freedoms they have: to negotiate a fair return on their work," they added.

With confirmation of conservative Justice Neil Gorsuch earlier this year, a reversal of existing case law appears likely. Last year, the Supreme Court could not reach a decision in a similar case, Friedrichs v. California Teachers Association. A 4-to-4 tie among the justices reverted the case to the Ninth Circuit Court of Appeals, which upheld its earlier ruling in favor of the teachers' union.

"It's extremely likely that opponents of mandatory fees are going to prevail this time," Cunningham-Parmeter said. "All of the tea leaves point to Justice Gorsuch providing the fifth vote to invalidate these … mandatory fees."

Public sector union officials refer to mandatory fees as "fair share" fees because the money pays for the cost of collective bargaining and pursuing grievances. Without mandatory fees, workers who decline to join the union would still reap the benefits of the union without paying any of the cost.

John Larson, president of the Oregon Education Assocation, said he sees the case as an attack on workers' rights, but added that the success of unions ultimately depends on "how well we can show them the value of our collective voice."

In the 1977 case, Abood v. Detroit Board of Education, the Supreme Court held that public employees could be forced to pay dues for a union's representational work, but could not be required to pay for political activity.

The Janus complaint contends that all public sector collective bargaining activities are inherently political and hence, mandatory dues amount to government-compelled speech in violation of the First Amendment, according to the Olympia, Washington-based Freedom Foundation, which has supported other "right-to-work" efforts.

Oregon's public sector workers are under no obligation to join the union, but they often have to take action to opt out of paying full dues in favor of paying lower "fair share" fees, Cunningham-Parmeter said. While dues might cover the cost of some of the union's political activities, "fair share" fees are restricted to paying for collective bargaining, grievances and other non-political services, the law professor said.

Depending on the contract, some workers who decline to join the union still have to pay full dues upfront and then apply for a rebate for the amount of the dues that would have gone toward the union's political activities.

The OEA, for instance, provides rebates usually within a month of when workers apply for a rebate. About 10 percent of its 43,000 eligible workers sought the rebate last year.

Public sector employees' union membership averages 17 percent in states that ban mandatory fees compared with 49 percent in states, such as Oregon, that allow mandatory fees, according to the research by the social scientists who wrote in support of the California Teachers Association.

The court's decision is due by June.

Paris Achen
Portland Tribune Capital Bureau
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