Just over two years ago, after the passing of Justice Antonin Scalia but before the confirmation of Justice Neil Gorsuch, the U.S. Supreme Court deadlocked in a 4-4 tie over whether unions could require non-members to pay “fair share fees.” The case challenged the Supreme Court’s 1977 Abood v. Detroit Board of Education precedent that allowed public sector unions to force non-union members to pay fees covering the cost of collective bargaining so long as the workers were not made to pay for a union’s political or ideological activities.
Recently, in Janus v. AFSCME, the Supreme Court returned to the issue. Ultimately, the Court held that allowing public sector unions to require non-union workers to pay fair share fees violates workers’ First Amendment rights, thereby overturning the Abood precedent.
The case was brought by a child support specialist at the State of Illinois Department of Healthcare and Family Services. Although he was not a union member, Council 31 of the American Federation of State, County, and Municipal Employees (AFSCME), which touts itself as the “nation’s largest and fastest growing public services employees union with more than 1.6 million working and retired members,” negotiated for the plaintiff in collective bargaining matters and deducted fair share fees totaling 78% of union member dues from his paychecks. The plaintiff “object[ed] to many of the public-policy positions that AFSCME advocate[d] for in collective bargaining” and believed AFSCME engaged in “one-sided politicking.” The plaintiff also argued that the Abood precedent was “offensive to the First Amendment” because it permitted the government to “compel employees to subsidize an advocacy group’s political activity.”
In a 5-4 decision penned by Justice Samuel Alito, the Court concluded that because all public unions’ activities are inherently political in nature, requiring workers who do not want to be union members to pay fair share fees violates the workers’ First Amendment rights. Notably, the Court added that unions must have permission to take fees from workers’ paychecks even if they are union members, opining, “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 practical effect of the ruling could be that more individuals will elect to opt out of public union membership, which will in turn reduce union funding and weaken collective bargaining strength. It could also force unions to double-down on recruiting efforts to convince potential members of the benefits of paying union dues. Finally, it may cause public sector unions to cut back on the services they provide to individuals who do not pay dues.
While it is unclear whether the Janus decision will apply to private sector unions, the case signals an interest from the Court in scrapping established precedent if it believes the original precedent was wrongly decided. In the meantime, the ruling deals an indelible blow to government workers’ public unions in 22 states and time will tell how these unions respond to the decision.