Explainer: Supreme Court upholds free speech and free association for public sector workers
Religion & Liberty Online

Explainer: Supreme Court upholds free speech and free association for public sector workers

What just happened?

In a 5-4 decision, the Supreme Court ruled today in the case of Janus v. AFSCME that government employees who are represented by a public sector union to which they do not belong cannot be required to pay a fee to cover the costs of collective bargaining.

The ruling overturned a forty-year-old precedent first set in Abood v. Detroit Board of Education that allows government agencies to mandate union dues or agency fees as a condition of employment.

What was the case about?

Mark Janus is a child support specialist at the Illinois Department of Healthcare and Family Services and the plaintiff in Janus. Janus didn’t want to be a part of the American Federation of State, County and Municipal Employees union but was legally required to pay a fee to cover the cost of representing him.

“I’m definitely not anti-union. Unions have their place and many people like them,” Janus told the Washington Free Beacon. “I was never given a choice. I really didn’t see that I was getting any benefit [from union membership]. I just don’t think I should be forced to pay a group for an association I don’t agree with—that goes to the First Amendment.”

Illinois law allows public employees to unionize, and if a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees, even those who do not join. The law also states that while the union may engage in collective bargaining, no other non-union agent may represent individual employees and individual are not allowed to negotiate directly with their employer.

Non-members of Illinois public unions are also required to pay an “agency fee,” i.e., a percentage of the full union dues (In Janus’s case the total chargeable amount for nonmembers was 78.06 percent of full union dues.) Under Abood v. Detroit Bd. of Ed., this fee may cover union expenditures attributable to those activities “germane” to the union’s collective bargaining activities, but may not cover the union’s political and ideological projects.

What did the Court rule?

The Supreme Court ruled that Illinois’s extraction of agency fees from non-consenting public-sector employees violates the First Amendment. They also claim that the Abood decision erred in concluding otherwise, and that Abood is therefore overruled.

“Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns,” says the majority opinion, which was written by Justice Alito. “That includes compelling a person to subsidize the speech of other private speakers.”

“The Union claims that Abood is supported by the First Amendment’s original meaning,” says Justice Alito. “But neither founding-era evidence nor dictum in Connick v. Myers, supports the view that the First Amendment was originally understood to allow States to force public employees to subsidize a private third party. If anything, the opposite is true.”

In conclusion the Court reversed the decision and stated that,

States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.

How did the justices vote in this case?

The vote was 5-4 with Justices Roberts, Kennedy, Thomas, Alito, and Gorsuch voting for and Justices Breyer, Ginsburg, Sotomayor, and Kagan voting against.

Justice Alito delivered the opinion of the Court, in which Justices Roberts, Kennedy, Thomas, and Gorsuch joined. Justice Sotomayor filed a dissenting opinion. Justice Kagan also filed a dissenting opinion, in which Ginsburg, Breyer, and Sotomayor joined.

What is a “public-sector” union?

A public-sector union is a trade or labor union that represents the interests of employees within public sector or governmental organizations, such as teachers, firefighters, federal government employees, etc.

What was the Abood v. Detroit Bd. of Ed case about?

The Abood case resulted in a 1977 Supreme Court ruling that a public workspace (such as a public school) could be an agency shop. The Court determined that non-members of the union may be assessed dues for “collective bargaining, contract administration, and grievance adjustment purposes” while insisting that objectors to union membership or policy may not have their dues used for other ideological or political purposes.” The decision also noted:

Although public employee unions’ activities are political to the extent they attempt to influence governmental policymaking, the differences in the nature of collective bargaining between the public and private sectors do not mean that a public employee has a weightier First Amendment interest than a private employee in not being compelled to contribute to the costs of exclusive union representation. A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint, but, besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private, orally or in writing, and, with some exceptions not pertinent here, is free to participate in the full range of political and ideological activities open to other citizens.

In the Janus ruling, the Court states that “Abood was poorly reasoned, and those arguing for retaining it have recast its reasoning . . . Developments since Abood, both factual and legal, have ‘eroded’ the decision’s ‘underpinnings’ and left it an outlier among the Court’s First Amendment cases.”

Wouldn’t overturning the agency shop provision create a “free rider” problem?

In the context of unions, a free rider is an employee who pays no union dues or agency shop fees, but nonetheless receives the same benefits of union representation as dues-payers. The court ruled that avoiding “the risk of ‘free riders’ is not a compelling state interest, and that free-rider “arguments . . . are generally insufficient to overcome First Amendment objections.”

But there is no free rider problem unless a union explicitly chooses to create free riders. As James Sherk explains:

Unions and their supporters argue that this unfairly forces them to represent workers who do not pay their share of collective-bargaining costs. They argue that right to work allows workers to enjoy the benefits of a union contract without paying for it. As Michigan state representative Tim Greimel told the Detroit News, “This really is not about so-called right to work or so-called freedom to work, it’s about freedom to freeload.”

That would be a fair point, if it were true. But it is not. The NLRA [National Labor Relations Act]does not require unions to bargain as exclusive representatives. It enables them to do so — an important difference. Unions may bargain on behalf of every worker in the company. But the Supreme Court has ruled that the NLRA’s protections are “not limited to labor organizations which are entitled to recognition as exclusive bargaining agents of employees . . . ‘Members only’ contracts have long been recognized” (Retail Clerks v. Lion Dry Goods, 1962). Unions can negotiate contracts that apply only to dues-paying members and exclude non-dues-paying members. Their argument against right to work is untrue.

What’s wrong with being forced to pay for union representation?

In many countries that have a state religion, citizens are forced to pay a portion of their income to support the activities of the state-approved church. Most Americans recognize that being required to directly finance the sectarian and dogmatic activities of a religious organization they may not wish to be associated with is a violation of their freedom of association.

Similarly, Americans should not be forced to financially support unions that claim to their economic interest if they believe such organizations are engaging, even indirectly, in activities (such as political campaigning) of which they disapprove.

Joe Carter

Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).