Below is a summary of the issues and ruling in the landmark U.S. Supreme Court case Janus v. AFSCME:
Mark Janus was a child support specialist working for the state of Illinois who was challenging the $45 per month in fair share fees he was required to pay to his AFSCME local union. The law in the state of Illinois allows public sector unions to charge members a fair share of the union’s expenses on collective bargaining and representational activities. The lawsuit was initiated by Illinois Republican Gov. Bruce Rauner, but the district court allowed Janus to be substituted as the plaintiff.
In 1977, the U.S. Supreme Court unanimously held in Abood v. Detroit Board of Education that public-sector employers may not require employees to be members of the union, but it may require them to pay agency (fair share) fees to cover the cost of their representation. Subsequent cases clarified which expenses can be charged to nonmembers and the method for informing nonmembers about those expenses. This has been the law of the land for 40 years.
Mark Janus, an Illinois state employee and agency fee payer in AFSCME, filed a lawsuit against his union and several state officials.
(1) Under the First Amendment, the government cannot limit free speech (with limited exceptions), and it cannot compel a person to speak; (2) Forcing him to contribute money to the union’s collective bargaining efforts is “compelled speech,” in effect forcing him to espouse opinions that aren’t his own; (3) Therefore, it is unconstitutional for the state to require him to pay agency fees to the union as a condition of his employment.
In effect, Janus argued that Abood should be overturned.
The issue before the Supreme Court was whether it violates the U.S. Constitution for public sector employers to require non-members to pay agency fees as a condition of employment.
The court held that agency fee laws violate the First Amendment rights of dissenting non-members: “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.”
It is well established that government can neither suppress speech that it disfavors nor compel speech that it favors. It is equally established that money is speech, under the First Amendment. The question in this case, then, is whether requiring non-members to pay agency fees to the union is tantamount to compelling them to speak the union’s message. The high court concluded that it is.
The court rejected Abood’s two primary rationales for allowing agency fee agreements. First, Abood drew a line between a union’s political/ideological activities and its collective bargaining activities. Non-members cannot be required to financially support the former, but collective bargaining is a private act, not political, and so non-members may be required to help foot the bill for bargaining.
The court in Janus rejected this political/non-political distinction. All public sector collective bargaining, in the court’s view, is inherently political because it impacts agency budgets and other policy decisions. For example, teachers’ unions might bargain over class sizes, seniority rules, and merit pay systems. These all go to the heart of education policy and the size of school budgets – in other words, political decisions. Because the union takes positions on these issues in bargaining, such positions are political positions, and non-members cannot be required to subsidize that political speech it in any way.
Second, the Abood high court emphasized the state’s interest – as an employer – in labor peace within its workforce. Exclusive representation benefits the employer as well as the union by giving the employer one union to deal with and preventing rival unions from competing for members in the same workplace. Because labor peace is in the employer’s interest, it may require nonmembers to help pay for the cost of achieving that peace.
The Janus high court dismissed this argument as well because the employer’s interest in labor peace is not sufficient to justify the infringement on non-members’ First Amendment rights. Furthermore, the court pointed out, labor peace has not been a problem in the 28 states where agency fees are not permitted. In those states, unions have functioned as exclusive representatives of members and non-members alike without collecting any fair share fees and without disrupting the employer’s workplaces.
Justices Kagan, Ginsburg, Breyer and Sotomayor dissented from the majority’s opinion for three key reasons. First, the chargeable/non-chargeable expense framework as set out in Abood was a workable solution that struck a balance between non-members’ First Amendment rights and public employers’ interest in labor peace.
Second, thousands of contracts covering millions of employees have been built on Abood’s foundation over the last 40 years. Kicking the leg from under that stool has the potential to upend public sector labor relations in both predictable and unpredictable ways.
Finally, the majority’s decision “weaponizes the First Amendment,” turning it into “a sword and using it against workaday economic and regulatory policy.” It turns everyday employment matters into issues of constitutional significance. And it undermines states’ democratic governance of their own labor relations.