This term, the US Supreme Court will consider a case that will determine whether government workers who choose not to join a union can refuse to pay the union’s “agency fees.” The case is Janus v. AFSCME. At issue are so-called agency fees – or “fair share” fees – the money unions charge non-union workers to pay for their “share” of the union’s collective bargaining activities on behalf of all employees. The Janus plaintiffs contend that forcing them to pay agency fees violates their First Amendment free-speech rights.
The Abood Rule
Just as the First Amendment grants freedom to speak, it also grants freedom not to be compelled to subsidize speech an individual does not support. Despite this protection, current law permits public-sector unions to impose mandatory agency fees on non-union workers to fund union activities they may not support.
The law is based on Abood v. Detroit Board of Education, a U.S. Supreme Court case decided forty years ago, in which non-union public employees argued that the union’s compelled agency fees violated their free-speech rights because their money would be used to subsidize union activities they did not support. The Court held that workers could be required to pay their “fair share” of the union’s costs in bargaining employee benefits and working conditions as long as non-union workers were not required to cover the costs of the union’s “political or ideological” activities.
New Court, New Decision?
Fast-forward forty years and the Abood precedent is in jeopardy of being overturned. What’s changed? More public-sector workers belong to unions. Union activities have become highly politicized with most member funds going toward political and ideological causes. At the same time, government agencies are choked by public-sector benefits and budget cut-backs. States are responding by limiting public-sector collective bargaining. Modern political ideology is also influenced by the decline in private-sector union membership and an increase in the number of state “right-to-work” laws.
The high court also seems to have less confidence in the Abood decision. Last year, Abood was nearly reversed in a similar case, Friedrichs v. California Teachers Association, but when Justice Antonin Scalia died the Court lost the deciding vote and the case ended in a split decision. Today, conservatives dominate the high court which has agreed to revisit the issue of agency fees in Janus case. This time, the issue is framed a bit differently. While Abood attempted to separate unions’ “chargeable” representational activities and “non-chargeable” political activities, the Janus plaintiffs contend that all public-sector union activities are inherently political. Therefore, even agency fees finance political speech that non-union workers should not be forced to support.
Because of its potential impact, Janus is being earnestly debated by both sides. Conservatives observe that public-employee unions are allowed to use agency fees to fund a host of causes with political ramifications, so much so that it can be difficult to separate unions’ collective bargaining from their political activities. Even the courts have found distinguishing chargeable from non-chargeable expenses tricky. Because the government is the employer, collective bargaining is necessarily politicized.
Union leaders, on the other hand, argue that if Janus succeeds, non-union workers will become “free riders” benefitting from the union’s services without having to pay for them. Workers will have less incentive to join or continue membership when they can benefit from free services. The loss of membership and dues threatens the financial health and political pull of public-sector unions.
Janus Going Forward
There are 22 states that currently authorize unions to demand agency fees. By comparison, 28 states have “right-to-work” laws that preclude mandatory agency fees. Overturning Abood would effectively give public-sector union workers rights similar to those of private-sector workers in right-to-work states. A decision in Janus is expected sometime before the Court adjourns in June 2018.