Supreme Court Rules Public Sector NonMember Union Dues Are Unconstitutional

Q: Can public employees, who are not members of a union, be forced to pay union dues?

A: No. On June 27, 2018, in a 5-4 opinion, the United States Supreme Court overturned more than 40 years of precedent, ruling that it is unconstitutional to force public employees to pay agency fees.

In Janus v. AFSCME, Council 31, Mark Janus, a state employee of Illinois, refused to join AFSCME (the “Union”).  Mr. Janus strongly objected to several of the public policy positions taken by the Union.  Despite his refusal to join the Union, however, he was still required to pay a portion of the Union’s fees.  Under the Illinois Public Labor Relations Act, employees who do not wish to join the union are not required to pay full union dues, but rather must pay a percentage of the dues.  These fees, commonly referred to as agency fees, are automatically deducted from nonmembers’ wages in order to compensate the union for the costs of the collective bargaining process and related activities.

The central point of Mr. Janus’ argument was that the nonmember fee deductions are coerced political speech, violating the First Amendment. The Court held that since unions take positions on matters of public importance, requiring public employees to provide financial support to a union would infringe upon their First Amendment rights.  By acting as the exclusive representative of the employees, a union is essentially speaking for all of the employees.  Thus, when a union speaks about matters of public concern, it violates employees’ First Amendment rights, because the union is forcing individuals to endorse views that they find objectionable.

AFSCME argued that agency fees are necessary to prevent nonmembers from taking advantage of the benefits of union representation without bearing the cost. The Court explained that unions receive several benefits simply from being designated as the exclusive representative of the employees.  For example, unions are given a privileged place in negotiations with employers over wages, benefits, and working conditions.  Therefore, it is in the union’s best interest to represent even nonmembers because it allows them to retain their power and control over the administration of the collective-bargaining agreement.  In addition, the union argued that the nonmembers’ First Amendment rights were not restricted because the fees collected by unions only cover collective bargaining, and not political and ideological activities.

The Court found in favor of the nonmembers, stating that it is unconstitutional to force those nonmember employees to pay agency fees. The majority opinion, written by Justice Samuel Alito, ruled that states and public-sector unions “may no longer extract agency fees from nonconsenting employees … The procedure violates the First Amendment and cannot continue.”

Although this decision applies directly to public-sector unions, it could result in a decline in the labor movement generally. Twenty-eight states already have “right to work” statutes in place, banning unions from requiring nonmembers to pay agency fees.  However, unions are steadfast in many of the remaining states, including Pennsylvania.  The elimination of mandatory agency fees for nonmembers may reduce membership across the country, and thus, weaken unions generally.  Justice Alito seemed to recognize this, stating:  “We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members.”

— Tracey E. Diamond and Lula T. Weldekidan, Law Clerk