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

AAUP filed with the National Education Association (NEA) an amicus brief in the US Supreme Court arguing that the payment of agency fees by nonmembers in public sector collective bargaining unions is constitutional. At issue in the case is whether nonmembers of unions, who share in the wages, benefits, and protections that have been negotiated into a collectively bargained contract, may be required to pay their fair share for the cost of those negotiations. The National Right to Work Committee, which is behind the case, is asking the Court to find that such fair share fees violate the First Amendment. As the brief explains, the First Amendment has never been so interpreted and doing so would conflict with the Court’s long-established deference to state decisions about their public workforces.

In this case, Janus v. American Federation of State, County, and Municipal Employees, Council 31, anti-union forces are making their second attempt to overrule the Supreme Court’s 1977 precedent in Abood v. Detroit Board of Education, which held that agency fees are constitutional under the First Amendment. Anti-union organizations are trying to get rid of agency fees and discourage union membership as part of their avowed goal to “deal a mortal blow” to unions.

The NEA/AAUP amicus brief explains that the US Supreme 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 robust collective bargaining, including agency fees as a fair and equitable way to distribute the costs of collective bargaining among all the employees who benefit. Evidence shows that maintaining a robust collective bargaining system advances the government’s interest in providing high quality public services. The amicus brief discusses studies showing that unionization in public schools and universities is linked to improving the quality of education and of working relationships within educational institutions.

The Supreme Court will hear oral arguments in the case on February 26, 2018. A decision is expected by the time the Court’s term ends in late June 2018. If the Supreme Court holds that agency fees are unconstitutional, it would likely be effective the day it is issued.