US Supreme Court: Forced collection of 'fair share' union fees unconstitutional, violates workers' free speech rights

By Jonathan Bilyk | Jun 27, 2018

Compelling non-union government workers to pay so-called “fair share fees” to unions they do not wish to join violates the First Amendment speech rights of non-union workers and is unconstitutional, the U.S. Supreme Court has ruled, finding in favor of an Illinois state worker who had sued to end the fees, also known as agency fees, in Illinois and across the country.

In a 5-4 decision handed down Tuesday, the divided court overturned a 40-year-old legal precedent which had provided legal justification for a regime under which states, like Illinois, and other public employers would extract the fees from the paychecks of non-union employees, and hand the money to unions, who claimed the fees were needed to offset expenses the unions incurred when collectively bargaining on behalf of all workers in a particular labor unit, including non-union workers.

Critics of the practice, however, said the practice was little more than a mechanism to funnel cash to unions, who then used the money to further political goals and operations the non-union workers likely opposed.

The Supreme Court’s conservative majority sided with critics.

“The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them,” Justice Samuel Alito wrote in the summary of the majority opinion. “Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

The majority opinion in the case docketed as Mark Janus v American Federation of State County and Municipal Employees, was authored by Justice Samuel Alito, joined by Chief Justice John Roberts and justices Clarence Thomas, Anthony Kennedy and Neil Gorsuch.

Alito noted the practice resulted in “billions of dollars … taken from nonmembers and transferred to public-sector unions in violation of the First Amendment.”

 “Those unconstitutional exactions cannot be allowed to continue indefinitely,” Alito wrote.

Justice Elena Kagan filed a lengthy dissent, joined by liberal justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Sotomayor also filed a one-paragraph dissent, affirming her complete agreement with Kagan’s dissenting opinion, as both Sotomayor and Kagan lamented the majority’s use of precedent to “wield the First Amendment in … an aggressive way.”

The case had landed in federal court in 2015, when Illinois Gov. Bruce Rauner, a Republican, sued the union, asserting Illinois law and policies allowing the state to compel nonunion workers to pay the “fair share” or “agency” fees violated the rights of thousands of state workers. The lawsuit noted fair share fees can amount to as much as 99 percent of the dues paid by similar workers who are union members.

Rauner was tossed from the legal action, when a federal judge determined he lacked standing to sue. However, at the same time, the judge granted state employee Mark Janus permission to essentially replace Rauner’s complaint with one of his own, to become the lead plaintiff in the case.

At federal district court in Chicago and again at the U.S. Seventh Circuit Court of Appeals, judges dismissed Janus’ lawsuit, noting they were bound by the U.S. Supreme Court’s 1977 decision in Abood v Detroit Board of Education, which explicitly upheld such agency fees as constitutional.

Janus’ lawyers with the Chicago-based Liberty Justice Center and the National Right to Work Legal Foundation, however, appealed the case to the U.S. Supreme Court, noting their intent to ask the high court to overturn Abood.

In September 2017, the Supreme Court agreed to take the case, marking another opportunity for the court to address what Alito called deficiencies in the “poorly reasoned” and “wrongly decided” ruling in Abood.

In 2016, the Supreme Court deadlocked 4-4 on those questions concerning the Abood precedent. At that time, the court was presented with a case originating in California. However, the court had been reduced to eight justices following the death of conservative Supreme Court Justice Antonin Scalia, and the refusal of the Republican majority in the U.S. Senate to consider the nomination of Merrick Garland by former President Barack Obama.

President Donald Trump, however, returned the court to nine justices in 2018 when the Senate confirmed his pick, Neil Gorsuch, who voted with the majority in the Janus decision.

The decision is expected to deal a financial blow to unions, depriving them of potentially millions of dollars each year from non-union employees forced to pay the agency fees.

The decision noted Janus alone paid more than $500 each year to the union, whose political and bargaining goals he opposed. In his case, the decision noted, Janus’ fees amounted to about 78 percent of what union members paid in dues.

While Abood barred unions from using those fees to fund political advocacy, Alito’s decision noted the “line” the courts have attempted to draw in the ensuing decades over the use of such fees had proven to be “unworkable,” as unions have used any number of methods to justify their use of the money.

Alito noted, in Janus’ case, the union asserted it could use such fees to fund “lobbying” activities the union proclaimed would benefit all workers.

“That formulation is broad enough to encompass just about anything that the union might choose to do,” Alito wrote.

Alito repeatedly criticized a lack of recognition on the part of unions and the dissenting justices of the differences between what Abood ostensibly required, and what unions actually have done with the funds, noting unions routinely deploy bargaining and lobbying operations in support of higher taxes and greater government spending, in addition to advocating for a host of other progressive political positions, including on such issues as climate change and “sexual orientation and gender identity.”

All of these topics, he said, are “directed at the ‘public square’” and are of great public concern, meaning the protection of individuals’ free speech rights on such topics should be the court’s highest priority – not protecting unions against so-called “free riders” or preserving “labor peace.”

And under Abood, Alito said, the court had granted the union the authority to use the power of the state to force non-union government workers to subsidize the unions’ political speech, whether through direct advocacy, collective bargaining or other methods.

Alito noted at length the concerns used to justify Abood initially and in the ensuing decades have not materialized. The federal government and 28 states do not require non-union workers to pay agency fees. Yet, in all such instances, unions still jockey to serve as exclusive bargaining representatives for public sector workers, obtaining the prestige, power and “special privileges” that accompany such designation.

Alito said this indicates unions benefit substantially from such arrangements, whether or not non-union workers are required to pay to support it.

This, he said, means such fees cannot “be justified on the ground that it would otherwise be unfair to require a union to bear the duty of fair representation,” as such is essentially a cost of attaining the role of exclusive bargaining representative.

“It is … not disputed that the State may require that a union serve as exclusive bargaining agent for its employees - itself a significant impingement on associational freedoms that would not be tolerated in other contexts,” Alito wrote.  “We simply draw the line at allowing the government to go further still and require all employees to support the union irrespective of whether they share its views.”

In her dissent, Kagan lashed out at the majority, saying the Janus decision undoes a “stable balance” struck by Abood four decades ago, undoing thousands of contracts in states, cities and other public bodies across and country, unleashing unpredictability into public collective bargaining.

She said the majority decision overlooks the special legal requirements imposed on unions by laws governing collective bargaining, setting unions apart from other “interest groups.” And Kagan said it likely signals the start of a downward spiral for unions.

“Without a fair-share agreement, the class of union non-members spirals upward,” Kagan wrote. “Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)—so they too quit the union.

“And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative - or, in the worst case, to perform them at all. The result is to frustrate the interests of every government entity that thinks a strong exclusive-representation scheme will promote stable labor relations.”

However, Kagan reserved her strongest criticism for what she called the majority’s decision to “weaponize” the First Amendment, deploying it against “workaday economic and regulatory policy,” in the process short-circuiting political debate over the role and place of public sector unions in the country.

“There is no sugarcoating today’s opinion,” Kagan wrote.  “The majority overthrows a decision entrenched in this Nation’s law - and in its economic life - for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”

Following the decision, Janus and his legal team released a series of prepared statements hailing the ruling.

“This is the biggest victory for workers’ rights in a generation," said Jacob Huebert, director of litigation at the Liberty Justice Center.  "The First Amendment guarantees each of us, as individuals, the right to choose which groups we will and won’t support with our money. Today the Supreme Court recognized that no one should be forced to give up that right just to be allowed to work in government. The Court recognized that unions have the right to organize and to advocate for the policies they believe in – but they don’t have a special right to force people to pay for their lobbying. They have to play by the same rules as everyone else.”

Janus said the decision "restored" his First Amendment rights.

"So many of us have been forced to pay for political speech and policy positions with which we disagree, just so we can keep our jobs," Janus said in the statement. "This is a victory for all of us. The right to say ‘no’ to a union is just as important as the right to say ‘yes.’"

And Mark Mix, president of the National Right to Work Foundation, said the decision is an important milestone in the campaign against "coercive unionism."

"Union officials and their allies in state government have already taken steps to prevent workers from exercising their rights under the Janus decision, while millions of private sector workers in states without Right to Work protections are still forced to pay union fees or else be fired," Mix said.  "Further, workers of all stripes continue to have their freedoms of association violated by being forced under union monopoly ‘representation’ against their will. So, while we celebrate today’s decision, there remains much work to do to both enforce and expand upon this historic victory."

Unions joined with the dissenting justices in assailing the ruling. 

AFSCME president Lee Saunders called the decision an "unprecedented and nefarious political attack ... designed to further rig the rules against working people."

“Today’s radical decision by the Supreme Court is a blatant slap in the face for educators, nurses, firefighters, police officers and all public servants who make our communities strong and safe," said Lily Eskelsen García, president of the National Education Association teachers union. "We are living in a system that is rigged to benefit special interests and billionaires, all at the expense of working people. Those behind this case know that unions amplify workers’ voices and transform their words into powerful and collective action."

And Randi Weingarten, president of the American Federation of Teachers called the decision "a dark day in U.S. jurisprudence."

"The dissenting justices saw this case for what it really was - a warping and weaponizing of the First Amendment, absent any evidence or reason, to hurt working people," Weingarten said. 

In Illinois, polticians lined up on their respective partisan sides to either praise or attack the ruling.

Rauner, who spearheaded the legal action three years earlier, said the decision "is a historic victory for freedom of speech and affiliation for our public sector employees, and for taxpayers who have to bear the high cost of government."

"The significance of the #Janus decision will be felt not just in Illinois, but across America," he said in tweets posted following the decision.

His Democratic opponent for governor, J.B. Pritzker said he was "appalled" at the ruling. 

And U.S. Sen. Dick Durbin, D-Illinois, said the decision would "drive down wages and reduce benefits – like health care and retirement." He used the occasion of the decision to attack Rauner, drawing attention to the governor's "agenda of hostility to unions," 

"And now, Gov. Rauner has spearheaded a litigation effort, which has resulted in the Supreme Court overturning a 40-year-old precedent and further rigging the economy against hardworking Americans across the country," Durbin said, in a prepared statement.

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