By: Brian R. Bare, Brittany Flaherty Theis
Today, the United States Supreme Court issued a decision in Janus v. AFSCME. In this highly anticipated decision, the Supreme Court held that forcing nonmembers to pay “fair share” agency fees to a public sector labor union violates the First Amendment, overturning its own prior holding in Abood v. Detroit Board of Education. 431 U.S. 209 (1977). That precedent formed the basis of the decision by the Seventh Circuit Court of Appeals that neither it nor the district court had the authority to find the Illinois Public Labor Relations Act unconstitutional. The challenge was first brought by Governor Rauner, who was joined by state employee Mark Janus, a child-support specialist employed by the State of Illinois and a nonmember of the AFSCME union that represented his group of employees.
In 1977, the Supreme Court in Abood upheld a Michigan law that allowed a public employer to require those of its employees who did not join the union to pay fees to the union on the basis that they benefited from the collective bargaining of the union with the employer. The fees that could be collected were limited to the amount necessary to cover the cost of the union’s activities that benefited them. They could not be expanded so as to allow the union to use a portion of their fees “for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to the union’s duties as collective-bargaining representative.” The Court explained that to hold otherwise would require workers to be unwilling contributors to expenditures promoting political views contrary to their own, thereby violating their constitutional right of free speech.
Following those principles, the Illinois Public Labor Relations Act authorizes dues to be collected from union members and limited fair share fees to be collected from non-member employees on whose behalf the union also negotiates. The Seventh Circuit determined that Abood governs these provisions and affirmed the district court’s dismissal on that ground. The Supreme Court granted certiorari in the Janus case in September 2017 following the Seventh Circuit’s decision in March 2017.
In Janus, the Supreme Court has now held that the extraction of fair share fees from nonconsenting public-sector employees violates their First Amendment rights and, consequently, that Abood was incorrect and must be overruled. First, the Supreme Court held that fair share fees cannot be upheld on the argument that they promote an interest in “labor peace,” i.e. to avoid a situation where the same group of employees is represented by more than one union. The Supreme Court noted that, in the federal government and twenty-eight other states with laws that prohibit such fees, public sector employees are represented by unions that effectively serve as the exclusive representatives of all the employees. Second, the Supreme Court held that avoiding the risk of “free riders” is not a “compelling state interest” and the statutory requirement that unions represent members and nonmembers alike does not justify different treatment.
The ultimate holding of the Supreme Court is that “[n]either an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” If a public employer such as a school district is party to a collective bargaining agreement that contains a fair share provision, you should immediately contact legal counsel for advice regarding payroll procedures, communications with employees, and collective bargaining implications. Whitt Law attorneys Brittany Flaherty Theis and Brian R. Bare are available to discuss these and any other questions that you may have regarding the impact of Janus upon your organization. Whitt Law’s News & Knowledge blog will also include a supplementary post to address some of these questions and the Supreme Court’s analysis in this case.
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