In 1977, the Supreme Court in Abood v. Detroit Board of Education upheld a practice that required government employees to pay a fee (i.e. “fair share” or “agency fee”) to the union, regardless of membership status, to cover the cost of representation. While some reduced the ruling to wage garnishment in order to ensure that the unions’ collective bargaining efforts are not undermined by “free riders,” others noted that it makes sense that anyone who benefits from union representation should be expected to pay their fair share.
In the last five years, Abood has been challenged by several cases—most recently in 2016, where the Court was poised to overturn the decision, but ended in a 4-4 deadlock due the death of Justice Scalia. In February, oral argument will be heard in another case that sends Abood to the firing squad and perhaps without the hope of a last minute reprieve with newcomer Justice Gorsuch believed to be the necessary tiebreaker.
As an employment lawyer Atlanta GA trusts can explain, the case involves Mark Janus, a child-support specialist employed in Illinois, who brings his case against the public union, American Federation of State, County and Municipal Employees (AFSCME), empowered as the sole representative to negotiate with the state on behalf of Janus’ bargaining unit.[1] While Janus is not part of the union, he remains obligated to pay agency fees under state law. Janus argues, based on the First Amendment, that given the difficulty in discerning which of the union’s funds goes towards collective bargaining and which goes towards political lobbying, forcing him to contribute to the union is tantamount to compelling him to speak in favor of the union’s political agenda. The United States has submitted an amicus brief in support of Janus—calling on the Court to strike down compulsory public-sector agency fees that force him “to support private political and ideological viewpoints with which he may strongly disagree.”[2]
In response, the AFSCME asserts that the fears of Janus are not well founded because adequate procedures exist for distinguishing between fees germane to collective bargaining and those collected that go towards political purposes. UCLA professor Eugene Volokh agrees, writing that he sees no “principled First Amendment reason for forbidding governments from requiring such payments from public employees.”[3]
The political significance in this case is unmistakable: where one side is adamant about the free speech implications and a desire to separate themselves from the political affiliations of public unions, the other side is keen to point out that business groups simply want “employers [to] impose workplace rules without organized opposition” and “weaken the institutions that support a more equitable distribution of wealth[.]”[4]
It is a seminal decision and will have wide political and administrative implications. Among those is the livelihood of public unions if the mandatory nature of fee agreements becomes voluntary. As the solicitor general of Tennessee noted, without the safe harbor of mandatory agency fees, “public-sector unions could lose a significant source of funding.”[5]
Thanks to our friends and contributors from Barrett & Farahany for their insight Abood v. Board of education.
[1] http://www.scotusblog.com/2017/12/symposium-hijacked-riders-not-free-riders/
[3] http://reason.com/volokh/2018/01/19/why-theres-no-first-amendment-problem-wi
[4] http://www.scotusblog.com/2017/12/symposium-ruling-plaintiffs-revive-lochner/
[5] http://www.scotusblog.com/2017/12/symposium-hijacked-riders-not-free-riders/