5-4 SCOTUS Strikes Down Mandatory Union Dues for Public Employees

A state may not require public employees to pay dues to a union if he or she does not wish to be a member, ruled a  5-4 SCOTUS today in Janus v. AFSCME, reversing a Seventh Circuit decision.

The underlying facts are simple: Mark Janus, an employee of the state of Illinois, did not wish to be a part of the American Federation of State, County, and Municipal Employees, a union for public employees. Despite his decision to eschew union membership, Illinois state law required Janus to pay an “agency fee”, or a percentage of the union dues attributable to collective bargaining, totaling $535 per year. The governor of Illinois disapproved of the law and filed suit in federal court, which Janus joined. While the governor was dismissed from the suit for lack of standing, Janus and other individuals who had intervened in the suit were permitted to proceed. Janus’ suit was eventually dismissed by the lower courts, citing the 1977 Supreme Court decision in Abood v. Detroit Bd. of Ed which held that government entities could require employees to pay partial dues, but only to the extent “chargeable” to collective bargaining, not political activity. The Seventh Circuit affirmed the dismissal. Justice Alito, writing for the majority in Janus, deems Abood overruled and reverses the Seventh Circuit.

Petitioner Mark Janus’ complaints about the union stem from his disagreement with their policy positions. The opinion, quoting Janus’ petition:

Janus believes that the Union’s ‘behavior in bargaining does not appreciate the current fiscal crises in Illinois and does not reflect his best interests or the interests of Illinois citizens.’

In other words, it appears that Janus did not believe salary or benefit increases for which the union was advocating was appropriate given the state’s financial woes, and disagreed generally with the politics of the union. Therefore, he did not want to be compelled to subsidize the organization. The Petitioner argued that his First Amendment rights were violated by what amounted to “coerced political speech”.

SCOTUS here agrees. The Court points out the long-standing principle that just as the right to speak freely is protected, so is the right not to speak at all. Additionally, Alito points out, the Court has held that along with freedom of association comes freedom not to associate:

As Justice Jackson memorably put it: “If there is any fixed star in our constitutional constella­tion, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other

matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) (emphasis added).

The Respondent union argued that the state has a compelling interest in mandating its employees pay union dues despite their disagreement, raising their fear of “free-riders”, those who do not contribute but nonetheless enjoy the benefit of the union’s work. Admittedly, this seems a bit presumptuous of the union, as illustrated by the Petitioner’s response to that argument, paraphrased by Alito:

Petitioner strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.

The Court denies that the worry “free-riders”, even those who do enjoy the benefits, is a compelling enough concern to override their First Amendment concerns:

Suppose that a particular group lobbies or speaks out on behalf of what it thinks are the needs of senior citizens or veterans or physicians, to take just a few examples. Could the government require that all seniors, veterans, or doctors pay for that service even if they object?

…

In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.

The Court points out that there are millions of public employees represented by unions in jurisdictions that do not have compulsory dues, in response to the union’s argument that without the dues, the unions will not want the responsibility of representing those who do not pay. The Court further opines that unions actively seek the right of exclusive representation because of the “tremendous power” such representation grants, and believes they will continue to do so, with or without compulsory dues.

In response to the union’s argument regarding its responsibility to bear the expense of representing non-members in hearings on disciplinary matters, the Court grants that a union can refuse such representation or charge a fee, an arrangement that is in place in other jurisdictions. The Court simply does not buy the union’s arguments that representation of non-members is an undue burden.

Alito recognizes that unions tend to speak out and address a variety of topics in the realm of “sensitive” public policy issues such as climate change, sexual orientation and gender identity, noting that speech on these matters receives the highest level of First Amendment protections. Furthermore, citing collective bargaining for wages and benefits which involves expenditures of public funds, Alito states that union “speech” is “overwhelmingly of substantial public concern”, not only private interest. Thus, the majority holds that forcing public employees to subsidize this “speech” violates First Amendment rights.

The majority concludes by a more thorough discussion of the Abood case. In one noteworthy section, Alito refers to the “political patronage” of unions which stands in antithesis to other cases that hold “that public employees may not be required to support a political party.” Reading between the lines, Justice Alito takes issue with the mostly-democratic leaning tradition of union support. “By overruling Abood,” Alito writes, “we end the oddity of privileging compelled union support over compelled party support…”

Another part of Abood with which the majority took issue was the framework the older case established, in which it proposed finding the dividing line between union activities aimed at collective-bargaining and those which are intended to “achieve political ends”. In the public sector, Alito reasons, this is even more difficult since wages, benefits and other facets of collective-bargaining inherently involve matters of public concern and thus take on a political hue. “In sum,” says the Court, “Abood was not well reasoned.”

Sotomayor wrote a one-paragraph dissent, which does little more than expound on her agreement with the other dissent, written by Justice Kagan and joined by herself, Breyer, and Ginsburg. Kagan’s dissent expresses continued support for the Abood framework, and the long held principle that “government entities have substantial latitude to regulate their employees’ speech-especially about terms of employment-in the interest of operating their workplaces effectively.” To that end, she advocates the benefits to the government of having a single, “exclusive employee representative to bargain with” in negotiations. Kagan laments the potential detrimental effects the majority decision will have financially on public unions, and the impact on public employees and employers nationwide, citing the majority for its disregard of the widespread reliance by state and local governments on Abood.

Concluding, Kagan accuses the majority of “weaponizing the First Amendment”, and of overruling Abood for no reason other than “because it wanted to. Because, that is, it wanted to pick the winning side in what should be-and until now, has been- an energetic policy debate.” In closing, writes Kagan:

Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. 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.

So what does this mean for employers and their employees? For now, for those not in government, it means nothing. The ruling is specific to public employee unions. For those who are currently employed in the public sector with a similar set up as that of Illinois, it means changes. Under this ruling, dues or “agency fees” can no longer be deducted from paychecks, absent clear, affirmative consent from the employee. Those who do not give consent will keep their money, but may lose out in other ways, such as representation during grievance or disciplinary procedures.

The effect on the unions themselves likewise remains to be seen; voluntary participation is more likely in some places than others. And not all states have a system like that of Illinois; West Virginia has a public employee union (separate from that of teachers and school personnel), but participation is completely voluntary-and the union has no collective bargaining power. It mostly functions to provide non-lawyer representation in employment-related administrative hearings. It does, however, have two powerful teachers’ unions, which will likely be affected by this decision.

As unions are largely darlings of the left in modern day, the 5-4 split was predictable. But given that union membership includes folks from both political factions, the fallout from this decision will be interesting to see.