Public Employee Unions’ Agency Fees Declared Unconstitutional

By Ryan Lee

On June 27th, 2018, the U.S. Supreme Court ruled in a 5-4 decision in favor of petitioner Mark Janus’ right to not pay the American Federation of State, County, and Municipal Employees’ agency fees. Agency fees are charges to all public employees represented by a union regardless of the individual employee’s membership to the union. The agency fees for AFSCME account for 78.06% of the full union dues. Janus, a state employee represented by AFSCME, fundamentally opposes the positions of the labor union with respect to their actions taken in collective bargaining and other matters.

In a 1977 case Abood v. Detroit Board of Education, the Supreme Court upheld a Michigan law that mandated public employees without union membership to pay union fees because the employees benefited from the unions’ collective bargaining strategies regardless of union membership. In Janus, the Court overruled its decision in Abood—setting a new precedent that state laws allowing union charges for non-union public employees are unconstitutional.

The Court found that AFSCME’s practice of collecting agency fees from non-member public employees to be a violation of the freedom of speech, which includes “both the right to speak freely and the right to refrain from speaking at all.” According to Justice Alito’s majority opinion, forcing Janus to contribute to AFSCME’s agenda by paying agency fees is a form of “compelled subsidization of private speech [which] seriously impinges on First Amendment rights.” The majority opinion includes the following:

Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence.

The Court found that the assertions in Abood that requiring agency fees would maintain “labor peace” and solve the dilemma of “free riders” were insufficient to justify agency fees under the standard scrutiny and expressed confidence these issues could be solved through other means. In fact, the Court expressed apathy toward agency fees as a whole, finding that unions could be maintained without them.

Justice Alito turned his focus back to the majority’s perceived shortcomings of the Abood decision. Alito points out that changing times have shifted the Court’s perspective on the subject of public sector unions, stating that the Abood decision has “eroded” and become an “outlier” from current precedent in First Amendment cases. According to the majority, Abood was based on the “ ‘unsupported empirical assumption’ that ‘the principle of exclusive representation in the public sector is dependent on a union or agency shop.’” Since “public-sector union membership has [now] come to surpass private-sector union membership,” the Court views the protection of union practices through a different lens than it did in 1977 when public labor unions were a relatively new presence in the workplace.

In dissent, Justice Kagan, joined by Justices Sotomayor, Breyer, and Ginsburg, chastised the majority’s decision to change the Court’s precedence on union agency fees—as Justice Kagan highlights, a “41-year-old precedent”. The dissenters also highlighted the potential legal turmoil that could result from the Janus decision, as many states have intricate legal statutes surrounding labor unions built off the precedent set by Abood. Justice Kagan’s contempt for the current decision was clear in her dissent:

More than 20 States have statutory schemes built on the decision. Those laws underpin thousands of ongoing contracts involving millions of employees. Reliance interests do not come any stronger than those surrounding Abood. And likewise, judicial disruption does not get any greater than what the Court does today. I respectfully dissent.

Justice Sotomayor filed an additional dissent which specifically objects to the “aggressive” use of the First Amendment she believes was used by the majority in the Janus decision.