14 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
February 2019
Employee Benefits/Labor & Employment Law
Supreme Court Strikes Down Compelled Public-Sector Union Fees BY JASON E. WINFORD
In Janus v. AFSCME, the U.S. Supreme Court held that the First Amendment prohibits states and public-sector unions from requiring public employees to pay union fees without their consent. The Court’s June 2018 decision, a 5-4 opinion by Justice Alito, expressly overruled a longstanding precedent as “wrongly decided.”
Background
Many states, including Texas, have right-to-work laws that prohibit workers from being forced to join a union or pay union fees. However, some 22 states, plus the District of Columbia, require government employees to pay union fees as a condition of employment. Forty-one years ago, the Supreme Court in Abood v. Detroit Bd. Of Ed. said this type of “agency shop” arrangement did not violate the First Amendment. In Abood, the Court held that public employees who did not want to join their union could still be forced to pay an “agency fee” to cover the union’s costs for collective bargaining, contract administration, and grievance adjustment. But the union could not, under the First Amendment, require
non-union members to pay for political and ideological activities, as long as they made their opposition known. Beginning in 2012, the Court began expressing misgivings about Abood, but did not directly overrule it. Later, in 2016, the Court in Friedrichs v. California Teachers seemed poised to overrule Abood, but Justice Scalia’s untimely death resulted in an equally divided Court, leaving Abood intact for the moment. Abood finally met its predicted demise in Janus.
Facts
Mark Janus was employed by the State of Illinois. Consistent with Abood, Illinois law allowed public sector unions to charge nonmembers an agency fee—i.e., a percentage of full union dues—for collective bargaining-related activities. The agency fee for these so-called “chargeable” expenditures was automatically deducted from employees’ wages; employee consent was not required. As a public employee, Janus was represented by a public-sector union. Although he refused to join the union because he opposed many of its policy positions, he was still required to pay an agency fee of $44.58 per month, which amounted to 78
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percent of full union dues. Janus filed suit claiming the agency fee deduction violated his First Amendment rights. Relying on Abood, the lower courts dismissed his claim.
Abood Overruled
The Janus majority held that agency fees cannot survive First Amendment scrutiny. First, the Court reasoned that Abood’s two justifications for upholding agency fees—the state’s interest in labor peace and the avoidance of “free riders”— do not meet the exacting scrutiny standard required by the First Amendment. Labor peace, while a compelling state interest, can be achieved by less compelling means than requiring agency fees. And avoiding free riders—i.e., nonmembers who benefit from the union but do not bear the costs— is not a compelling state interest. The Court also rejected the union’s efforts to justify Abood based on the First Amendment’s original meaning and on a line of cases allowing the government to limit individual public employee’s free speech rights in some circumstances. Finally, stare decisis could not save Abood. The Court explained that Abood was poorly reasoned; it lacked workability in trying to draw a line between chargeable and nonchargeable union expenditures; its underpinnings have been eroded by subsequent developments; and any union reliance on Abood in light of its questionable status does not outweigh the abridgement of employee free speech rights. Thus, public-sector unions may no longer deduct agency fees from a nonmember’s wages unless the employee affirmatively consents. Such consent cannot be
presumed, and must be freely given and shown by clear and compelling evidence. After Janus, public sector unions may see fewer members and revenues from fees, although predictions vary. More significantly, Janus opens the door for new lawsuits seeking to enforce or expand its key holdings, including: Individual and class actions by government workers to recover years’ worth of union fees collected without the affirmative consent Janus requires. Legal challenges to new union-friendly state laws that are being passed to counter the effects of Janus. Lawsuits seeking to invalidate privatesector union security clauses in the airline and railroad industries under the Railway Labor Act (RLA), where there is arguably sufficient state action to invoke Janus. Indeed, in Rizzo-Rupin v. International Association of Machinists and Aerospace Workers, which was just filed in New Jersey federal district court on January 8, 2019, several United Airlines employees are relying on Janus in seeking to have agency fees declared unconstitutional in the RLA context. Efforts to extend Janus to strike down mandatory state bar membership requirements, which have similarities to public sector agency shop arrangements. In fact, in Fleck v. Wetch, the 8th Circuit recently upheld North Dakota’s integrated bar association, but in December, 2018 the Supreme Court remanded the case for further consideration in light of Janus. HN Jason E. Winford is an attorney with Jenkins & Watkins, P.C. and is board-certified in Labor & Employment Law by the Texas Board of Legal Specialization. He can be reached at jason_winford@yahoo.com.
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