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The Third Circuit said “not yet.” Will the United States Supreme Court say “maybe”? That is what the plaintiffs in Rizzo-Rupon v. International Association of Machinists want to hear. If they do, the Mackinac Center Legal Foundation will argue a case that could fundamentally change labor law for the better.
In the 2018 case Janus v. AFSCME, the Supreme Court held that public sector employees could not be compelled to support a union — not in any amount. This was a reversal from its 1997 ruling in Abood v. Detroit Board of Education, which allowed unions to charge nonmembers a fee. That case, in turn, was based on previous rulings that examined whether employees unionized under the Railway Labor Act could be forced to pay agency fees. Specifically, in a 1956 case, Railway Employees v. Hanson, the Supreme Court held that private sector employees could challenge agency fees under the First Amendment. But it also let unions charge the fees.
As part of stating that an employee could bring a First Amendment claim, the court said there was state action involved. This was important because federal constitutional protections restrict governments, not private organizations such as unions. If a court is to find that a private organization violated someone’s constitutional rights, it must first find that there is sufficient government involvement to trigger a constitutional review.
Janus was important in that it held that an agency fee requirement violates the First Amendment. This was contrary to the holding in both Hanson and Abood. The latest Mackinac Center case involves three employees — Linda Rizzo-Rupon, Susan Marshall, and Noemio Oliveira — of United Airlines, a private sector company. The plaintiffs want to stop being forced to pay agency fees. The theory: The Supreme Court had already found that there is state action under the Railway Labor Act (which also governs the airline industry), and Janus now makes it clear that agency fees are unconstitutional.
But, in Janus, the Supreme Court questioned the validity of a previously established finding. Was there, in fact, state action under the Railway Labor Act? In their petition to the court, the airline employees argued that there was. To support that claim, they said the federal government is the entity which forced them into a mandatory bargaining union in the first place: Hence, a state action occurred. If the Supreme Court were to accept this argument, it would likely mean that agency fees are banned under the Railway Labor Act, but also under the National Labor Relations Act.
Nationally, there are around 800,000 employees covered by the Railway Labor Act, and most of them are in the airline industry. The National Labor Relations Act, meanwhile, covers millions of employees.
The 3rd U.S. Circuit Court of Appeals refused to rule in the plaintiffs’ favor. In federal courts, it is generally held that only the Supreme Court can overturn a Supreme Court ruling, even if the logic of one of its recent rulings seems to require that an earlier ruling be overturned. Thus, the circuit court said it was “not yet” the case that agency fees must be banned under the Railway Labor Act. If the Supreme Court eventually decides that such fees should be banned, millions of people will no longer be forced to financially support unions.
We expect to find out in the fall if the Supreme Court will hear the case.
