On June 27, 2018, the U.S. Supreme Court in a 5-4 decision ruled in favor of Mark Janus, a child support specialist at the State of Illinois Department of Healthcare and Family Services. Justice Samuel Alito wrote the opinion.

 

The case was about whether state and local government workers could be forced to pay a fee (agency fees) to a union even if they chose not to join the union. The agency fees purportedly were to pay the costs of collective bargaining for these workers and not for politics. The court held that this arrangement violated the workers’ First Amendment rights.

 

In its opinion, the Supreme Court first discussed whether the District Court had jurisdiction since Mark Janus moved to intervene in a case brought by Illinois Governor Bruce Rauner, which was dismissed for lack of standing. The Court held that the District court did, however, have jurisdiction because the Judge dismissed Governor Rauner’s case and treated Janus’ amended complaint as a new lawsuit.

 

Next, the Court determined that the holding in Abood v. Detroit Board of Education, a 1977 Supreme Court decision that upheld agency fees, was not consistent with First Amendment principles. The Court said that freedom of speech includes the right to speak and the right to refrain from speaking. The Justices believe additional damage is done in this latter case and especially when an individual is forced to subsidize another’s speech:

 

 

The Supreme Court then examined precedent, specifically Harris v. Quinn (2014) and Knox v. Service Employees (2012) to determine what type of scrutiny it should use. In these cases, the Court did not use strict scrutiny because the behavior was unconstitutional under a less demanding test. Like those cases, this Court found that it did not need to use strict scrutiny because the agency fees violated lower standards.

 

Following precedent, the Court looked at the reasons given for agency fees in the Abood case. The first reason was to promote “labor peace.” The union argued that there would be chaos if employees in a unit were represented by multiple unions. The Court, however, ruled that the exclusive bargaining representative and agency fees are not tied and that there would still be “labor peace” without agency fees. In deciding this, the Court used federal employment law and states with right-to-work laws as examples because they do not allow agency fees. Yet, they still have exclusive bargaining representatives and “labor peace.”  

 

The second reason given for agency fees in Abood was “the risk of free riders.” The union argument was that without agency fees, workers would still enjoy the benefits of collective bargaining without paying for them. However, the Supreme Court has ruled in the past that free-rider arguments are not compelling enough to overcome First Amendment violations. The Court also mentioned that other groups work on issues that benefit more people than their members:

 

 

Finally, the union argued that they are different from other organizations because they are forced to represent nonmembers. However, the Court found that designation as an exclusive bargaining representative gives a lot of power and benefits to unions, which outweigh the costs of representing nonmembers. That is why unions continue to seek this designation even in non right-to-work states.

 

After examining the arguments made in Abood, the Supreme Court next addressed the additional arguments made by the union. The union first argued that the First Amendment was not written to protect the free speech rights of public employees. The Court, however, rejected this argument, citing precedent and saying that even Abood concluded that public employees have First Amendment rights. In addition, the cases the union cited are about specific speech restrictions and whether they were necessary to protect “fundamental government interests,” not the First Amendment in general. The cases the union cited also did not say that government workers don’t have free speech rights. Finally, the First Amendment did not allow agency fees at the time of its adoption because public sector unions only came into existence during the mid-1900s.

 

The union next argued that agency fees are constitutional citing Pickering v. Board of Education (1968), a case that held that employee speech is mostly unprotected if it’s part of the employee’s job or it involves a private matter. However, the Court ruled that Abood was not based on Pickering. Further, even if Abood was based on Pickering, the Pickering arguments still don’t work. First, the case was about the impact of the employee’s speech on his or her job. It had nothing to do with employees subsidizing speech they don’t agree with. Second, Pickering does not work as well for compelled speech. Finally, if Pickering was used, an employee might be forced to pay for the political activities of a union, but not for collective bargaining.

 

The union’s third argument was that union speech is like the employee speech for official duties in Garcetti v. Ceballos (2005). In that case, the court found that during work, employers generally can control the speech of their employees. However, with collective bargaining, the union is speaking for employees. This is different from the Garcetti case where the employees are speaking for the employer.

 

Finally, the Court determined that this speech is of public concern because collective bargaining affects how public money is spent. In addition, unions express their views on a number of issues during collective bargaining. The Court also found that the government’s interest in an “adequately funded exclusive bargaining agent” as the union argued didn’t justify the agency fees.

 

The Supreme Court, therefore, concluded that agency fees violate the First Amendment. The Court then discussed whether stare decisis or following precedent still applies despite this violation. The Supreme Court generally won’t overturn a prior decision unless there are strong reasons to do so. However, they are more likely to overrule cases involving First Amendment violations.

 

The Court examined five factors to determine if Abood should be overruled. These factors were “the quality of Abood’s reasoning, the workability of the rule it estab­lished, its consistency with other related decisions, devel­opments since the decision was handed down, and reliance on the decision.“ The Court first concluded that the quality of Abood’s reasoning was poor because the Abood court used two cases (Railway Employes v. Hanson (1956) and Machinists v. Street (1961)) that were about private sector union shops to decide a case involving public sector union shops. Collective bargaining in the public sector is more political than in the private sector. Further, those two cases did not fully examine the First Amendment questions, and the Abood court incorrectly deferred to legislative judgments when deciding the case.

 

Abood also fails the workability factor. The Court tried to draw a line in Lehnert v. Ferris Faculty Assn. (1991) between costs that the union could pass on to nonmembers and political expenses. However, unions are still able to include political costs in nonmembers’ fees because it is expensive and time consuming for an employee to challenge the union.

 

In addition, legal developments since Abood have made it an outlier from other cases, and there has been a substantial increase in public sector union membership and government spending since Abood was decided. Later cases, for example, have used exacting scrutiny, which the Abood court did not use, and have held that public employees should not be forced to support a political party.

 

The final factor is reliance. The union argued that agency fees should remain because unions may have given up other benefits in exchange for agency fees in current collective bargaining agreements. The Supreme Court rejected this argument because First Amendment rights are more important than contract arrangements that will end in a few years. In addition, Abood wasn’t clear enough for the unions to rely on, especially since unions have known about this case and other similar cases for years. The Court also mentioned the billions of dollars that the unions have taken from nonmembers since Abood and that this taking should be stopped immediately.   

 

Finally, the Supreme Court ruled that the automatic deduction of fees from an employee’s paycheck without the worker’s consent is unconstitutional:

 

 

This last part of the decision was a surprise win for workers.

 

Overall, this decision was a phenomenal victory for government workers. These workers will now have the freedom to choose whether to join and support a union or not. No longer will the workers who choose not to join a union be forced to support that union.

 

The Center for Worker Freedom (CWF) congratulates Mark Janus and his lawyers, especially William Messenger of the National Right to Work Legal Defense Foundation and Jacob Huebert of the Liberty Justice Center, on this victory. In addition, CWF thanks Illinois Governor Bruce Rauner for initiating the first case.