Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466 (2017)

On June 27, 2018, the United States Supreme Court overruled a 41 year precedent, Abood v. Detroit Board of Education, 431 U.S. 209 (1977) and held that it is unconstitutional to collect agency fees from un-consenting nonmembers. For over four decades the court had repeatedly found constitutional the agency-fee system under which unions could charge an agency fee to public employees represented by those unions but who don’t want to be union members. This system was applied in twenty-two states and across thousands of labor agreements covering millions of employees. The majority’s decision (written by Justice Alito) overturned this precedent on the theory that collection of agency fees from nonmembers “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” The court did not delay the effective date of its decision and therefore public unions and employers generally cannot collect agency fees from nonmembers after June 27, 2018. The court did recognize that certain fees could be collected from nonmembers but only if the nonmember “clearly and affirmatively consents before any money is taken from them.”   

The Janus decision arose as a result of a long term campaign by anti-union groups to get rid of agency fees and discourage union membership as part of their avowed goal to “deal a mortal blow” to unions. Under Abood unions could charge agency fees to non-union members for the cost of the union negotiating and enforcing a collective bargaining agreement covering those individuals. Over the last forty years, the courts have repeatedly found that the agency-fee system adequately balances the interests of the employees and the state in an efficient labor relations system and the First Amendment interests of union members and nonmembers. However, in a 2012 decision, Knox v. Service Employees, Justice Samuel Alito questioned whether Abood was good law and virtually invited challenges to the constitutionality of fair share fees.

Janus was one such challenge. It started with a lawsuit filed in Illinois and funded by the National Right to Work Committee. The lower courts summarily ruled against the plaintiffs relying on the forty year precedent of Abood. The plaintiffs filed an appeal with the Supreme Court, which accepted the case in September 2017. The AAUP joined with the National Education Association in an amicus brief filed with the Supreme Court in January 2018. The amicus brief argued that Abood should be upheld because the court’s historical interpretation of the First Amendment gives the government, in its role as employer, significant authority to manage the public sector workplace. Where state laws provide for public sector unionization, public employers have strong interests in ensuring collective bargaining, including agency fees as a fair and equitable way to distribute the costs of collective bargaining among all the employees who benefit.

However, the conservative majority in Janus rejected the argument that Abood should be upheld.  In previous rulings, Justice Alito made no secret of his contempt for Abood. He devotes most of Janus to attacking what has been foundational First Amendment precedent for 41 years. He quotes himself as having termed Abood “something of an anomaly” in 2012 and “questionable on several grounds” in 2014, and says in Janus that “Abood went wrong at the start.” As Justice Elena Kagan ably demonstrates in her dissenting opinion, the decision to overrule Abood cannot be defended in terms of First Amendment analysis. Rather, it is nothing more than a political decision that “prevents the American people, acting through their state and local officials, from making important choices about workplace governance. . . . The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.”

Nonetheless, Alito found that the imposition of agency fees “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” Alito concluded that agency fees violate the First Amendment because they require nonmembers to subsidize union speech, even if they disagree with the message. The court also ruled that avoiding the risk of “free riders” is not a compelling state interest and free rider arguments “are generally insufficient to overcome First Amendment objections.”

Janus confirms that the First Amendment is not violated by collective bargaining through an exclusive employee representative. Many pages of the Janus opinion are spent in an attempt to show it is “simply not true” that “designation of a union as the exclusive representative of all employees in a unit and the exaction of agency fees are inextricably linked.” That would hardly have been relevant if exclusive representation itself were unconstitutional.

Further, the Janus ruling clearly does not extend to unions in the private sector.  For example, the Janus opinion severely criticizes Abood’s “fail[ure] to appreciate that a very different First Amendment question arises when a State requires its employees to pay agency fees” than arises from “Congress’s ‘bare authorization’ of private-sector union shops under the Railway Labor Act.” In this regard, Janus says it is “questionable” whether “any First Amendment issue could have properly arisen” from “Congress’s enactment of a provision allowing, but not requiring, private parties to enter into union-shop arrangements.”

Even the conservative majority recognized that its ruling would generally not invalidate other provisions in collective-bargaining agreements or state law. The court explicitly stated that “States can keep their labor-relations systems exactly as they are—only they cannot force nonmembers to subsidize public-sector unions.” And that generally if an agency provision “of a collective-bargaining agreement is found to be unlawful, the remaining provisions are likely to remain in effect.” In addition, the majority did allow that some monies or fees could be collected from nonmembers in limited circumstances, for example it posited that “individual nonmembers could be required to pay for [union representation in the nonmember’s personal grievance] or could be denied union representation altogether” and that nonmembers could voluntarily and affirmatively agree to pay a fee to the union.  However, there are high standards for collecting fees under these options, which most current agency-fee systems likely would not meet.