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U.S. Supreme Court: No Forced Public Sector Union Fees

by D. Gregory Valenza | | June 28, 2018

The U.S. Supreme Court ruled that public sector employers (states, local governments) cannot require public sector employees to pay “agency fees” to public sector unions.  That means that public employees who do not wish to be represented by a union in collective bargaining will not have to pay for the union’s representation activities.  The Court’s 5-4 ruling in Janus v. AFSCME, Council 31, overrules the Court’s 1977 decision in Abood v. Detroit Bd. of Ed.  

The case arose in Illinois, which permits employees to unionize. Illinois law authorizes a union to be the exclusive representative of employees in a given bargaining unit, even if an employee covered by that bargaining unit does not want union representation. The employee must allow the union to negotiate on his or her behalf, and the individual has no power to negotiate with the employer. 

Because of Abood, those employees who do not want to join the union as a full member do not pay the full amount of union dues. Rather, these employees pay an “agency fee,” which ostensibly is the portion of the full dues devoted to representation activities.  In the Janus case, the agency portion of the dues were supposed to be about 78% of the full dues payment.  What happens to the other 22%?  The union uses those funds for non-representation activities, including political advocacy, lobbying for legislation, and other union activities unrelated to the negotiation / administration of a bargaining unit’s contract.  The union accounts for its bargaining and non-bargaining activities, and provides members notice of the calculation.  Employees may challenge the calculation of agency fees. 

Janus, one of 35,000 Illinois state workers represented by AFSCME public union, objected to having to pay any fees to support the union’s activity.  He argued that the state’s compelling his participation in the union, even as just an “agency” member, violates the First Amendment.  How so?

Because this is a public sector situation, the state employer is bound by the Constitution, including the First Amendment. The state as employer therefore has to comply with the First Amendment, although some rules are modified to accommodate the employment context.  Janus’s argument was that requiring him to pay agency fees is tantamount to coerced speech, in that Janus was required to adopt – and finance – the Union’s bargaining position with the State. The Supreme Court’s decision in Abood authorized the separation of representation activities from the non-representation activities as a work-around to First Amendment concerns. Since the Abood opinion, though, the Court had questioned it and declined to extend it.  Fast forward to now, Janus asked the high court to overrule Abood

And that’s what happened.  The Court decided that even requiring the “agency fee” was coerced speech; that is, the government requires someone to adopt and subsidize speech he / she doesn’t necessarily agree with.  Here is some analysis from the Court (most citations deleted):

freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” 

*** The right to eschew association for expressive purposes is likewise protected. *** As Justice Jackson memorably put it:“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) (emphasis added).

Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that theState of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues—say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.

 * * * * 

When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence.***

Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns. *** 

As 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.” A Bill for Establishing Religious Freedom, in2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) (emphasis deleted and footnote omitted) *** We have therefore recognized that a “‘significant impingement on First Amendment rights’” occurs when public employees are required to provide financial support for a union that “takes many positions during collective bargaining that have powerful political and civic consequences.” Knox, supra, at 310–311 (quoting Ellis v. Railway Clerks, 466 U. S. 435, 455 (1984)).

Under this constitutional framework, the Court rejected Abood’s distinction between representative and non-representative activities. The Court held that Illinois did not have the right under the First Amendment to compel employees’ subsidizing of the union through agency fees. 

The remainder of the opinion covers why the Illinois law fails the analysis that courts apply to limitations on speech.  The Court then went on to explain why overruling Abood was the proper course of action.  Four justices dissented.

So, to sum up: this case is about public sector unions and how they are financed by public sector employees.  It does not specifically cover private sector unions, where the employer is not a public entity and is not bound by the First Amendment. However, the case may  come up before a future Court, for analysis of whether the National Labor Relations Act, a federal statute, is valid under the First Amendment to the extent it requires employees who do not wish to join a union to pay agency fees.  Not yet, but we’ll see.  For now, to repeat, private sector employers are not affected by this ruling.

This case is Janus v. AFSCME, Council 31 and the opinion is here.  




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