In a long-anticipated decision, the Supreme Court held in Janus v. AFSCME that compulsory “fair share” systems in the public sector violate the First Amendment rights of non-union members. The Court’s decision, breaking 5-4 along familiar party lines, overturns the Court’s 41-year landmark decision in Abood v. Detroit Bd. of Ed. upholding the legality of fair share.
Fair share systems exist in the majority of states with statewide collective bargaining laws. The idea behind fair share starts with the proposition that labor organizations have a duty of fair representation to all members of the bargaining units they represent, without regard to whether the employees actually join the union. In the minds of the legislatures adopting fair share systems, this posed a “free rider” problem where non-members of a union could demand the same benefits and representation as union members, but not actually pay anything for those services.
Under a fair share system, non-members can be required to pay an alternative to dues, an assessment representing their fair share of the costs of negotiating and administering the collective bargaining agreement. Fair share members cannot be charged their share of the union’s political activities or their share of any other union activities that are unrelated to bargaining (e.g., holiday parties, scholarship programs, etc.). Fair share assessments are less than union dues, most commonly in the range of 80-85% of the full union dues for public safety unions.
In changing its course on fair share, the Supreme Court found that forcing public sector employees to pay anything to their unions amounted to “speech” that was covered by the First Amendment. The Court found that “compelling individuals to mouth support for views they find objectionable violates a cardinal constitutional command, and in most contexts, any such effort would be universally condemned.”
The Court rejected its prior rulings that any impact on speech was outweighed by the desire for stable labor relations and to eliminate the free rider problem. On the labor peace issue, the Court was blunt in condemnation of its prior decision in Abood: “We assume that ‘labor peace,’ in this sense of the term, is a compelling state interest, but Abood cited no evidence that the pandemonium it imagined would result if agency fees were not allowed, and it is now clear that Abood‘s fears were unfounded. The Abood Court assumed that designation of a union as the exclusive representative of all the employees in a unit and the exaction of agency fees are inextricably linked, but that is simply not true.”
The Court’s dismissal of the free rider problem was every bit as blunt. The Court found that the cost of representing non-members should be borne by unions as a price to pay for being able to serve as the exclusive bargaining representative: “Even without agency fees, designation as the exclusive representative confers many benefits. That status gives the union a privileged place in negotiations over wages, benefits, and working conditions. Not only is the union given the exclusive right to speak for all the employees in collective bargaining, but the employer is required by state law to listen to and to bargain in good faith with only that union. In addition, a union designated as exclusive representative is often granted special privileges, such as obtaining information about employees, and having dues and fees deducted directly from employee wages.
“What about the representation of non-members in grievance proceedings? Unions do not undertake this activity solely for the benefit of non-members. Representation of non-members 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. And when a union controls the grievance process, it may, as a practical matter, effectively subordinate the interests of an individual employee … to the collective interests of all employees in the bargaining unit.”
The Court then suggested that without fair share, unions could potentially charge non-members for direct representation: “Whatever unwanted burden is imposed by the representation of non-members in disciplinary matters can be eliminated through means significantly less restrictive of associational freedoms than the imposition of agency fees. Individual non-members could be required to pay for that service or could be denied union representation altogether. Thus, agency fees cannot be sustained on the grounds that unions would otherwise be unwilling to represent non-members.”
The tone of the Court’s lengthy opinion in Janus was critical of public sector unions, particularly so of cost of wages and benefits in unionized environments. That tone was well captured in the closing words of the opinion: “We recognize that the loss of payments from non-members may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from non-members and transferred to public sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.
“For these reasons, States and public sector unions may no longer extract agency fees from non-consenting employees. Neither an agency fee nor any other payment to the union may be deducted from a non-member’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, non-members are waiving their First Amendment rights, and such a waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by clear and compelling evidence.”
Janus v. AFSCME, Council 31, 2018 WL 3129785 (U.S. 2018)
This article was first published in the Public Safety Labor News, August 2018 issue.