The Supreme Court is set to hear Janus v. AFSCME, a case which will determine whether employees represented by a public sector union under a collective bargaining agreement, but not full union members in good standing, should be required to pay agency fees to the public sector union. The ruling will potentially determine the future of labor unions in the United States.
At the outset, the controlling law is that of In Abood v. Detroit Board of Education, 431 U.S. 209 (1977). In that case the Supreme Court upheld a Michigan law which permitted public employers to require its employees to pay agency fees in lieu of union dues for employees who did not wish to join the union, against a First Amendment challenge. The rationale in Abood was based on equity, that even the non-union member employees were covered by the collective bargaining agreement between the union and the employer and therefore benefitted from the union representation.[1] The decision was limited, however, in that the agency fees were capped only to an amount necessary to cover the costs of union activities that benefited the non-union employees.[2] Moreover, the representative union could not expand the agency fees to cover “the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to [the union’s] duties as collective-bargaining representative.”[3] This solution seemed simple and straightforward: non-union employees paid the agency fee, the union kept dues and agency fees separate and used agency fee funds only to the benefit of the non-union employees. But, one of the primary tools used by unions is political speech, and that is the central issue in Janus.[4]
The appellant, Mark Janus, argues that there is no distinction between a union engaging in political speech by endorsing candidates and pushing legislation and engaging in the collective bargaining process with the State.[5] The argument surmises both processes are so inextricably intertwined that requiring an agency fee to be paid by non-union employees mandates political speech, and is contrary to the First Amendment.[6] If the Supreme Court finds for Mark Janus, what will be the lasting effect on public sector unions, and what are the workable solutions?
A forecast of diminished membership and funding might be the most impactful and lasting effect public sector unions would experience. Diminished membership will likely occur as union members realize that they do not have to pay union dues or an agency fee to be covered and protected under the industry collective bargaining agreement. The problem then becomes the ability of the union to collectively negotiate when funding for negotiation purposes wanes. Thus, hamstringing public sector unions at the negotiation table with state agencies.
If the Supreme Court determines that the agency fee should not be required, then it should also rule that those employees who elect to work as non-union member employees are designated as at-will employees or individual contractors outside of the protections and coverage of the collective bargaining agreement. Another alternative might be to require more stringent accounting by public sector unions, such as a separate account designated only for agency fees to eliminate any potential comingling of funds, or frequent account reporting to agency fee payers. Either option preserves the integrity of public sector collective bargaining and maintains a more equal playing field
[1] Abood v. Detroit Board of Education, 431 U.S. 209, 221-222 (1977).
[2] Id. at 235-36.
[3] Id.
[4] See Janus v. Am. Fed’n of State, Cty. & Mun. Employees, Council 31, 851 F.3d 746, 748 (7th Cir.), cert. granted sub nom. Janus v. Am. Fed’n, 138 S. Ct. 54, 198 L. Ed. 2d 780 (2017)(“the existence of an Illinois law requiring that he pay fees to the Teamsters, the union required to bargain on his behalf.”); see also Robert Iafolla, Public worker tells top U.S. court that mandatory union fees violate First Amendment, Reuters Legal (Nov. 30, 2017).
[5] See Janus v. Am. Fed’n of State, Cty. & Mun. Employees, Council 31, 851 F.3d 746, 748 (7th Cir.); see also Iafolla, supra note 4.
[6] See Janus v. Am. Fed’n of State, Cty. & Mun. Employees, Council 31, 851 F.3d 746, 748 (7th Cir.); see also Iafolla, supra note 4.
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