Public-Sector Employees No Longer Required to Subsidize a Union They Don’t Join
On June 27, 2018, the Supreme Court of the United States (SCOTUS) closed out its term with a decision altering a 40-year precedent (Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977)) and overturning more than 20 state’s laws.
In Janus, petitioner Mark Janus, an Illinois state employee whose unit was represented by a public-sector union, refused to join the union because he opposed its positions, including those taken in collective bargaining. Nevertheless, under state law Janus was required to pay a monthly union agency fee – a percentage of the full union dues that cover a portion of union expenditures. The procedural elements of the case get tricky, and the Illinois governor got involved along with the state attorney’s office, but the primary takeaway is SCOTUS’s holding that state law may no longer require non-consenting public-sector employees to pay an agency fee because it violates the First Amendment, “[b]y forcing free and independent individuals to endorse ideas they find objectionable.”
The dissent argued that the decision in Janus will have large-scale consequences. “[F]or over 40 years, Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), struck a stable balance between public employees’ First Amendment rights and government entities’ interests in running their workforces as they thought proper. Under that decision, a government entity could require public employees to pay a fair share of the cost that a union incurs when negotiating on their behalf over terms of employment. But no part of that fair-share payment could go to any of the union’s political or ideological activities.” Other key elements of the dissent were that:
- Public employee unions will lose a secure source of financial support (through agency fees).
- State and local governments that used fair-share provisions to further their interests will need to find new ways of managing their workforces.
- The relationships between public employees and employers will change in both predictable and wholly unexpected ways because thousands of ongoing contracts involving millions of employees will be impacted.
Janus: Looking to the Past and the Future
The case’s significantly inverse beginning and ending is apropos to the petitioner’s last name, Janus. In Roman mythology, Janus was the two-faced god of beginnings and endings. He was said to have two faces because he could simultaneously look to the future and the past.
In Janus, the past is the long-standing legal precedent per Abood where SCOTUS held that, “ . . . [s]ervice charges (agency fees) are used to finance expenditures by unions for collective bargaining, contract administration, and grievance adjustment purposes,” and do not violate the First Amendment because paying a service charge did not prohibit a public employee from “expressing his viewpoint . . . expressing his views, in public or private, orally or in writing, . . . and , he is free to participate in the full range of political and ideological activities open to other citizens.” And now, the future is an about-face placing a new standard disallowing agency fees.
Those in opposition to the Janus decision see it as an erosion of public-sector workers’ legal rights and union functionality because, they argue, unions collectively bargain for workers as a whole, and non-consenting workers receive the benefits of union negotiations (raises, time off, etc.) whether they join or not. Thus, non-consenting workers should pay their proportional share.
However, those in support of the Janus decision see it as a long-needed remedy because all “nonmember fee deductions are coerced political speech” and “the First Amendment forbids coercing any money from the nonmembers.”
Regardless of the past or future, Janus is the present.