Susan Marshall and Linda Rizzo-Rupon
Last year, the United States Supreme Court held in Janus v. AFSCME that public employees could not be forced to pay agency fees to public employee unions. Decades earlier, the court had held that the Constitution applied to actions by railway and airline unions that limited their members’ speech, even if the employer and the union were both private entities. Thus, the question after Janus is whether the holding banning mandatory agency fees would now apply to the airline and railway unions. In its Janus ruling, the court itself noted that this was an open question. In January, then, the Mackinac Center Legal Foundation filed a lawsuit seeking an answer: Rizzo-Rupon v. International Association of Machinists.
Three United Airlines ticket agents from New Jersey, Linda Rizzo-Rupon, Susan Marshall, and Noemio Oliveira, contend that, like public sector employees, they should not be forced to pay an agency fee to keep their job. In its Janus holding, the Supreme Court noted, “As [Thomas] Jefferson famously put it, ‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.’” The Rizzo-Rupon plaintiffs contend that their personal beliefs as private employees are no less valuable than those of public employees.
The case may turn on a legal test known as the state-action doctrine. Generally, constitutional limitations constrain governmental conduct, not private conduct. But, where government’s influence in private matters is sufficient (i.e. constitutes “state action”), the Constitution can apply, although the Supreme Court has recently been attempting to limit situations where state action is found.
Railway unions and airline unions both get their collective bargaining power from the Railway Labor Act, which was enacted in 1926 and eventually amended to include airline employees. The Supreme Court has long presumed that the Constitution applied to railway unions. For instance, starting in the 1940s, there were a series of cases concerning collective bargaining agreements that treated black and white employees differently. The black employees alleged this was a violation of the equal protection clause of the Constitution. Tellingly, the court did not summarily dismiss those cases as involving private actors and thus not subject to constitutional restraints. Rather, it construed the RLA to require fair treatment of all employees by the union and thereby avoided the constitutional question.
In 1956, the Supreme Court first examined the free speech rights of railway employees. In Railway Employes Department v. Hanson, the court noted that from at least 1934 to 1951, railway unions did not seek fees from nonmembers, and still, 75%-80% of employee chose to join the union and pay dues. In 1951, Congress gave these unions, at their request, the power to negotiate a requirement in labor contracts that nonmembers pay fees or be fired. The Supreme Court held this 1951 amendment was the governmental influence that triggered constitutional protections for workers. But it also said there were no constitutional violation in that particular lawsuit. In 1961, the court held in International Association of Machinists v. Street that it was possible to determine what portion of dues were political. Nonmembers, it said, could not be charged for these.
Now that Janus has held that all compelled fees can be considered political and therefore not required of nonmembers, the question is set: Will Janus apply to railway and airline unions? The Rizzo-Rupon case has gotten off to a slow start, since the United States government had to be given a chance to intervene to defend the Railway Labor Act if it so chose. Having not done so yet, the plaintiffs represented by the Mackinac Center and the unions have set forth their positions to the district court judge. A decision in the plaintiff’s favor could help free hundreds of thousands of railway and airline employees — if it eventually finds a way to the Supreme Court.