Supreme Court Strikes Down Agency Fees for Public Sector Unions

In a long-awaited decision, the US Supreme Court has overruled 40 years of settled public sector labor law doctrine and ruled that public-sector unions may not require the payment of an agency fee from non-members. Handed down today in Janus v. AFSCME, the decision was based on the First Amendment concerns of non-union members who objected to having to financially support a union against their beliefs.

The 5-4 decision along political lines reversed the 1977 decision in Abood v. Detroit Board of Education, 431 U. S. 209 (1977). Abood prohibited public sector labor unions from requiring non-members to pay union dues, but allowed the unions to charge an agency fee to cover the costs of collective bargaining and grievance handling. The agency-fee was to be calculated by deducting expenses “related to the election or support of any candidate for political office” from the dues paid by union members.

It would be impossible to fully review the Janus decision in a blog post in a way that does justice to its importance. However, let’s review the highlights of the truly landmark decision and its impact on the fire service. The Majority opinion offers an insightful discussion of the 1^st Amendment, including an acknowledgement of some of the shortcomings of the Pickering balancing test (my pet peeve) that goes well beyond the labor law implications of the decision. I will leave it to the labor law and 1^st Amendment scholars to dissect the decision further, as they undoubtedly will.

Here is what I consider to be the main reasoning behind the Majority’s opinion:

• We have held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.”
• 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.”
• 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 the State 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.
• Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved restrictions on what can be said, rather than laws compelling speech. But measures compelling speech are at least as threatening.
• 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.”

The Court went on to strike down agency fees as violating the 1st Amendment rights of public employees who choose not to support a union.

For purposes of this post, let’s focus on what may be an important implication for firefighter labor unions concerned with the impact of Janus. In explaining the responsibility of a union to represent the interests of non-members who choose not to pay an agency fee, the Court said:

• What about the representation of nonmembers in grievance proceedings? Unions do not undertake this activity solely for the benefit of nonmembers—which is why Illinois law gives a public-sector union the right to send a representative to such proceedings even if the employee declines union representation. §315/6(b).
• Representation of nonmembers furthers the union’s interest in keeping control of the administration of the collective-bargaining agreement, since the resolution of one employee’s grievance can affect others.
• In any event, whatever unwanted burden is imposed by the representation of nonmembers in disciplinary matters can be eliminated “through means significantly less restrictive of associational freedoms” than the imposition of agency fees.
• Individual nonmembers could be required to pay for that service or could be denied union representation altogether.

In a clarifying footnote, the Court added:

• There is precedent for such arrangements. Some States have laws providing that, if an employee with a religious objection to paying an agency fee “requests the [union] to use the grievance procedure or arbitration procedure on the employee’s behalf, the [union] is authorized to charge the employee for the reasonable cost of using such procedure.” E.g., Cal. Govt. Code Ann. §3546.3 (West 2010); cf. Ill. Comp. Stat., ch. 5, §315/6(g) (2016). This more tailored alternative, if applied to other objectors, would prevent free ridership while imposing a lesser burden on First Amendment rights.

Thus, an employee who opts not to be a union member nor pay an agency fee could conceivably be charged a fee by the union to process a grievance and/or provide representation during a disciplinary matter.

How will this play out in reality? This is uncharted territory but the concept endorsed by the Supreme Court that labor unions could charge non-members for services certainly opens up new strategic avenues for unions to consider. What should a local charge a non-member to process their grievance? Might the risk of bearing the costs associated with a grievance be enough to convince non-members to join, or at least voluntarily pay an agency fee?

This one will take some time to sort itself out… but, could it be that the Supreme Court has inadvertently opened Pandora’s Box?

Here is a copy of the decision: Janus v AFSCME