On September 28, 2017, the United States Supreme Court agreed to hear an appeal in Janus v. AFSCME Council 31, 851 F.3d 746 (7th Cir. 2017), which threatens to upend 40 years of history allowing public employee unions to require non-members to pay agency fees. This appeal is a key part of the efforts of a number of anti-union organizations to eviscerate the strength of public sector unions and their members.
In 1977, the Supreme Court of the United States held that it is constitutional for public sector unions to charge non-members agency fees. More specifically, in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Supreme Court upheld, against a challenge based on the First Amendment, a state law that allowed a public employer whose employees were represented by a union to require its non-union member employees to pay fees to the union. These fees were permitted because non-members benefited from the union’s collective negotiations on their behalf, despite their non-member status, since they were members of the bargaining unit to whom the union owed a duty of fair representation. However, the Court held that the fees were limited to the cost of the union's activities that benefited the non-members, and the non-members’ fees could not be used "for 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." 431 U.S. at 235-36.
Abood has been the law since 1977 and has withstood many attacks since that time. It struck a balance between the union’s and its members’ interest in avoiding the free-rider problem, on the one hand, and non-members’ interest in not having to pay for the advancement of political or ideological causes that they may not believe in.
However, the Supreme Court’s recent decision to hear the appeal of the National Right to Work Legal Defense Foundation and Liberty Justice Center in Janus seeks to undo this balance. The case seeks to reverse the Court’s 40-year-old holding in Abood by relitigating the argument that agency fees violate non-member employees’ First Amendment rights.
The Supreme Court got it right in Abood. While non-members do have the right to not support political and ideological speech and activities to which they do not agree, the free-rider problem is a very real one. The “free-rider problem” occurs when people take advantage of being able to use a common resource or collective good without paying for it. In this case, non-member employees, if not required to pay agency fees, would be entitled to take advantage of the work of the union bargaining and enforcing the collective negotiations agreement, and enjoy the benefits achieved through bargaining, without having to pay their fair share of the benefit. Thus, a free-rider is a person who receives the benefits of a union’s efforts without paying for the costs to produce it. The plaintiff in Janus wants to enjoy all the benefits but not share in the costs to produce those benefits. He wants a free ride while expecting the union to represent him at the same time.
The Supreme Court’s holding in Abood fully protects non-members’ free speech rights while balancing the interest of unions and their members in avoiding the free rider problem. We can only hope that reason will prevail over politics, and the Court will abide by its earlier decision in Abood in its upcoming review of the Seventh Circuit’s decision in Janus.
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