Janus v. AFSCME

July, 2018






On June 27, 2018, the U.S. Supreme Court revisited an issue that appeared before it in 2016, but the result was different.

In the case Janus v. AFSCME, the Court was asked, again, to decide if public-sector employees can be required to pay union fees as a condition of employment.  Mark Janus, the Illinois state employee, claimed that such agency fees are unconstitutional under the First Amendment right to free speech and association.

As a condition of employment, unionized public sector employees are required to pay union dues or an agency fee, which is a proportion of the full dues, usually 90-95%.  Union dues fund both those expenditures for collective bargaining, such as contract negotiations and grievance processing, as well as those made for political purposes, such as supporting pro-labor political candidates.  Those members who object to paying for the latter can elect to pay such agency fee, but since they do not pay the full union dues, they are not entitled to attend union meetings and vote on union matters.  Under labor law and the principle of the duty of fair representation, the union is required to fully represent all members of the bargaining unit, regardless of whether they pay full union dues or are agency fee payers.

The same issue was before the Court in 2016.  However, because of the vacancy of a justice due to the death of Justice Scalia, the decision in the case of Friedrichs v. California Teachers Association, the decision resulted in a 4-4 vote, which affirmed the 9th Circuit Court of Appeals decision upholding the agency fee principle.  That principle had been in effect since 1977 through the case Abood v. Detroit Board of Education.  The Janus case, therefore, overruled Abood.

             This time, in a 5-4 vote, the Court held that states, municipalities and public-sector unions may no longer require workers to pay agency fees or union dues.  “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt to be made to collect such a payment, unless the employee affirmatively consents to pay.”  Justice Samuel Alito, Jr. wrote for the majority.

The impact of this decision?

This decision makes every state a right-to-work state for the public sector, allowing individuals to receive the benefits of union membership and the protection of a collective bargaining contract without paying anything to the union, what union advocates claim are “free riders.”  Public sector unions will experience a decrease in funding, resources and effectiveness at the bargaining table, depending upon the strength of their members’ belief, need and support for the union.

I expect every public-sector union will increase its efforts in educating its membership, both dues-paying union members and those who are agency-fee payers, to the benefits of collective bargaining and “sticking with the union.”



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