Should Abood v. Detroit Board of Education be overruled, rendering public sector agency fee arrangements, which require non-union employees to pay a fee to the union, unconstitutional under the First Amendment?
This case will decide whether public-sector workers represented by a union can be required to pay agency fees. Janus argues that requiring public-sector workers to pay agency fees constitutes compelled speech and association, imposing undue restrictions on workers’ First Amendment rights. The American Federation of State, County, and Municipal Employees, Council 31 (“AFSCME”) argues that imposing agency fees on all workers allows unions to appropriately and fairly represent all workers’ interests, which unions are legally required to do. This issue affects every dues-paying, public sector worker. Accordingly, this case will impact the way unions organize and represent public-sector workers.
Questions as Framed for the Court by the Parties
Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.
In 2015, the governor of Illinois filed suit challenging provisions of the Illinois Public Labor Relations Act (“IPLRA”) on First Amendment grounds. By filing the lawsuit, the governor of Illinois sought to overrule Abood v. Detroit Board of Education, a case in which the Supreme Court upheld a Michigan law authorizing public employers to require non-union member employees to pay fees to the union that represented them. Similar to Michigan’s law at issue in Abood, Illinois’ IPLRA permits union collection of “fair share” fees from non-member employees. “Fair share” fees are proportional fees that cover collective bargaining and contract administration costs. In his constitutional challenge, the governor of Illinois claimed that mandatory fees force non-union member employees who do not support the union to contribute to it, which violates their right to free speech under the First Amendment.
Two non-union member public employees, one of which was Mark Janus, sought to intervene as plaintiffs in the governor’s constitutional challenge of the IPLRA. The district court dismissed the governor’s complaint for lack of standing and granted the two employees’ motion to intervene, but dismissed the action.
On appeal, the Seventh Circuit dismissed one of the employee’s claims because he had previously challenged the IPLRA provisions at issue, leaving only Janus as plaintiff. The Seventh Circuit then affirmed the district court’s dismissal of Janus’ claim for the same reason that no relief could be granted because only the Supreme Court has the power to overrule Abood.
Janus now requests that the Supreme Court revisit and overrule Abood on the basis that requiring non-union employees to pay union fees violates the First Amendment by compelling speech and association.
Janus argues that Abood should be overruled for several reasons. First, Janus asserts that Abood incorrectly held that bargaining with the government is not political speech. According to Janus, bargaining with the government is tantamount to lobbying because bargaining subjects often are important political issues, such as wages and pensions, and have significant civic consequences including raising taxes. Thus, Janus argues, agency fee requirements compel an individual to support a political advocacy group, impinging on the individual’s First Amendment rights.Second, Janus asserts that Abood should be overruled because it fails to apply the correct standard of judicial review. Janus explains that Supreme Court decisions such as Harris and Knox, which came after Abood, have applied heightened scrutiny to compelled association and speech in determining whether agency fees and other expenditures for speech are narrowly tailored or the least restrictive means to achieve a compelling state interest. Third, Janus contends that the framework set forth in Abood is unworkable because chargeable and nonchargeable expenses are difficult to distinguish and give unions unfettered discretion in determining what they charge non-members, which further damages non-members’ First Amendment rights. Lastly, Janus claims overruling Abood will not upset any reliance interests because employees will benefit from free choice, nor will the overruling undermine other precedent, because Abood is applied so narrowly as to not affect other agency fee cases.
In opposition, Madigan and Hoffman, and AFSCME dispute that Abood should be overruled and argue that there is no justification for departing from stare decisis, or the doctrine of precedent. According to AFSCME, Illinois state law requires collective bargaining to limit discussions to non-political issues such as salary, vacations, and parking, and are thus distinct from political lobbying. Thus, says Madigan and Hoffman, and AFSCME, Abood remains consistent with the First Amendment and correctly decided that government employees may be required to pay costs associated with exclusive representation but may not be required to subsidize political or ideological activities. Second, AFSCME, and Madigan and Hoffman explain that the Court does not apply strict scrutiny on cases involving the government, as employer, regulating employees’ speech, thus Abood did not “fail” to apply heightened scrutiny. Madigan and Hoffman also contend that Abood’s framework is workable and that lower courts have not struggled with distinguishing chargeable and non-chargeable expenses, but even if the courts were having difficulty, the Court should clarify the standard instead of upending precedent.Finally, Madigan and Hoffman, and AFSCME argue that overruling Abood would disturb significant reliance interests and countless collective bargaining agreements at stake, including that of the unions, employees, public employers, and States; the legislation of twenty-two states; and several areas of jurisprudence concerning how the government may deal with its citizen employees.
Janus claims that agency fee requirements fail both strict scrutiny and exacting scrutiny, and therefore violate non-member employees’ First Amendment rights. Janus disputes that agency fees are necessary for exclusive representation because the status alone as exclusive representative gives the union various benefits, powers, and advantages in recruiting. Janus also argues that these benefits refute Abood’s presumption that exclusive representation may burden unions or benefit union nonmembers. Due to these benefits, Janus claims that the union voluntarily assumes any limited obligations that accompany exclusive representation without a need for agency fees. Janus also asserts that forcing employees to pay for representation they did not freely choose is not the least restrictive means for the government to engage in collective bargaining; instead, there are viable alternatives to mandatory agency fees that do not infringe on non-member rights or harm their interests as agency fees do. Janus further argues that there is no compelling state interest which justifies the agency fee provisions because agency fees are not necessary for exclusive representation. Moreover, Janus claims that the government does not have a compelling interest in bargaining with unions.
In opposition, Madigan and Hoffman, and AFSCME argue that agency fees are not subject to heightened scrutiny because there is a difference between the government as an employer and the government as a regulator. According to Madigan and Hoffman, and AFSCME, it is constitutionally permissible for States to place reasonable conditions on government employment, including those that restrict speech. Moreover, Madigan and Hoffman contend that the government has never been required to show that these conditions are the least restrictive means to achieve its goals. Madigan and Hoffman further argue that the government’s interest in “effective operation” of a mandatory association warrants limited infringement of employee rights, and agency fees support the costs of a mandatory association. Additionally, agency fees used to support speech directed to the government in a non-employer context are subject to First Amendment scrutiny, and both Madigan and Hoffman, and AFSCME assert that Abood’s standard is grounded in this distinction. Furthermore, Madigan and Hoffman, and AFSCME both argue that the government does have a substantial interest in bargaining with unions because States, as employers, have a strong interest in dealing with an exclusive representative as reflected in the States’ legislation, as well as ensuring that the representative is “fairly and adequately” funded by preventing a situation where members subsidize non-members. Finally, Madigan and Hoffman argue that agency fees are a limited impingement on First Amendment rights because the fee only supports speech within the employment setting, does not restrict an employee’s freedom of expression, and does not force a nonmember into an expressive association with the union.
Janus argues that the exclusive representation doctrine benefits unions and that unions overstate the cost of fair representation. Janus contends that the cost of negotiating for all members is the same, irrespective of the number of dues-paying and non-dues paying members. As such, Janus asserts that eliminating mandatory agency dues will have little effect on the free-rider problem—the concern that non-members benefit from union representation without paying for such representation—because some members will endure “associational injury” from a forced representative. Moreover, The Buckeye Institute for Public Policy Solutions and the Southeastern Legal Foundation (“Buckeye Institute”), in support of Janus, argues that the free-rider problem is exaggerated. The Buckeye Institute argues that the increase in the number of free-riders, if any, that would come from a ruling in favor of Janus would be less than the number of covered non-union members. The Buckeye Institute also highlights that the enactment of right-to-work laws in Indiana, for example, did not deprive unions of funds as a result of the free-rider problem.
Madigan and Hoffman, on the other hand, assert that if agency fees for collective representation were entirely optional, then it would impossible to adequately fund the activities needed to fully represent constituents. Further, Madigan and Hoffman contend that it would be “virtually impossible . . . to distinguish the sincere objector from the opportunistic free rider.” The Americans Civil Liberties Union (“ACLU”), in support of Madigan and Hoffman, and AFSCME, also highlights that unions owe a duty of fair representation to all employees, and without agency fees, unions would still be required to represent non-paying members at the heightened expense of dues-paying members and other interests. The Economists and Professors of Law and Economics, in support of Madigan and Hoffman, and AFSCME, emphasize that eliminated agency fees would also force employees to subsidize employees who benefit from unionization but do not actually pay for it. The Economists and Professors of Law and Economics cite to empirical evidence, which shows that free-ridership increases when unions are unable to collect agency fees, as evidenced in private-sector unionization in right-to-work states. The Economists and Professors of Law and Economics also analogize workers who vote for unions but do not pay fees to citizens who vote for tax laws but pay as little as possible in taxes: there is value in both but little incentive to pay, which tends to pave way for the free-rider problem.
LABOR-MANAGEMENT RELATIONS: PEACE OR STRIFE?
Janus argues that unions do not create labor peace, and thus, labor peace and labor-management relationships should not be considered. The Freedom Foundation and Economists ("Freedom Foundation"), in support of Janus, argue that factors other than agency dues likely explain the decrease in union activity in states without agency fees. For example, the Freedom Foundation argues that states with right to work laws tend to discourage public employee strikes, and unions in right to work states are more hesitant to engage in strikes or other high-pressure activity that could cost them dues-paying members. Further, the Freedom Foundation argues that in Indiana, agency fees did not have a significant effect because unions continued to increase gross spending and their allocations of funding remained the same. Thus, the Freedom Foundation highlights that if there is no discernable difference between labor peace in right to work states and those with agency fees, agency fees do not serve a compelling interest to allow such regulation. The Buckeye Institute, in support of Janus, also argues that union membership does not correlate with job satisfaction, and if it is not correlated with job satisfaction, then it makes little sense to compel non-members to pay dues.
Madigan and Hoffman argue that the lack of agency fees would impede on a union’s ability to exclusively represent employees and the labor-management relationship, which has benefits for labor and management. Professors Estlund, et al., in support of Madigan and Hoffman, and AFSCME, argues that the exclusive-representation mechanism that is supported by agency dues reduces employee turnover, promotes effective workplace management, and preserves free speech. Professors Estlund, et al., also emphasize that collective bargaining, even in the public sector, allows employers to better hear employees' voice preferences and concerns that they otherwise would not. Accordingly, the ACLU, in support of Madigan and Hoffman, and AFSCME, emphasizes that public sector unions promote workplace democracy and industrial peace; thus, the ACLU claims that unions should be allowed to require agency fees to continue to facilitate workplace democracy and industrial peace in the public sector. According to the ACLU, agency dues “ensure that unions, who must represent the interests of all employees if they are to further the interest in labor peace, are not required to represent non-members for free, thereby undermining the unions’ fiscal health.”
The authors would like to thank Cornell Law School Professor Angela Cornell for her insight into this case.
- Jess Bravin: Supreme Court to Consider Public Worker Union Dues, The Wall Street Journal (Sept. 28, 2017).
- Adam Liptak, Supreme Court Will Hear Case on Mandatory Fees to Unions, The New York Times (Sept. 28, 2017)