(CN) – In a huge blow to organized labor, a divided Supreme Court ruled Wednesday that government-employee unions cannot force nonmember workers to pay bargaining fees.
Mark Janus and Brian Trygg sued to challenge the Illinois Public Labor Relations Act, which allows unions representing public employees to collect “fair-share” fees from nonmember employees on whose behalf it also negotiates.
Janus and Trygg sought to overturn Abood v. Detroit Board of Education, a 1977 U.S. Supreme Court decision upholding a Michigan law allowing a public employer to require employees who did not join a union to pay fees because they benefited from the union’s collective-bargaining agreement.
Last year, the Seventh Circuit affirmed the lower court’s dismissal of the two employees’ complaint.
“Only the Supreme Court has the power, if it so chooses, to overrule Abood,” Judge Richard Posner wrote for the Chicago-based appeals court. “Janus and Trygg acknowledge that they therefore cannot prevail either in the district court or in our court—that their case must travel through both lower courts—district court and court of appeals—before they can seek review by the Supreme Court.”
The Seventh Circuit dismissed Trygg from the case on the basis of claim preclusion because he had already challenged the “fair share” requirement before the Illinois Labor Relations Board and a state appeals court.
Janus brought the underlying challenge because the American Federation of State, County and Municipal Employees (AFSCME) took a little more than $45 from his paycheck every month, even though he declined membership.
In an appeal to the U.S. Supreme Court last summer, he argued the Abood decision “is inconsistent with this court’s precedents requiring that instances of compelled speech and association satisfy heightened constitutional scrutiny.”
The AFSCME faced long odds as the Supreme Court seemed close to overturning Abood in a nearly identical case argued in January 2016. The conservative majority on the court at the time appeared prepared to overturn Abood based on that case, but Justice Antonin Scalia died before the court could announce a decision.
The court split 4-4, leaving Abood in place, but court watchers expected Justice Neil Gorsuch, who is often compared to Scalia, would be the vote that breaks the tie in favor of Janus.
The nation’s highest court did not surprise Wednesday, ruling 5-4 that public-sector unions like the AFSCME can’t force nonmembers to pay dues.
Justice Samuel Alito delivered the majority’s 49-page opinion, which overruled Abood and found that making nonconsenting public-sector employees pay union agency fees violates the First Amendment.
“Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities,” Alito wrote. “We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”
Alito said that while public unions may experience an “unpleasant transition” in the short term due to the loss of payments from nonmembers, they have received a “considerable windfall… under Abood for the past 41 years.”