Saturday, September 30, 2023
Courthouse News Service
Saturday, September 30, 2023 | Back issues
Courthouse News Service Courthouse News Service

High Court Bars ‘Fair-Share’ Fees to Public Unions

(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.”


“It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely,” he wrote.

He added, “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.”

Chief Justice John Roberts as well as Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch joined Alito in the majority.

Justice Elena Kagan dissented and was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

Kagan said Abood struck a balance between public-sector workers’ First Amendment rights and “government entities' interests in running their workforces as they thought proper.”

“Under that decision, a government entity could require public employees to pay a fair share of the cost that a union incurs when negotiating on their behalf over terms of employment. But no part of that fair-share pay­ment could go to any of the union’s political or ideological activities,” she wrote. “That holding fit comfortably with this court’s general framework for evaluating claims that a condition of public employment violates the First Amendment.”

The dissenting opinion notes the consequences of the majority's ruling.

"Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways," it states.

Kagan said the majority “has chosen the winners by turning the First Amendment into a sword.”

“The First Amendment was meant for better things. It was meant not to undermine but to pro­tect democratic governance—including over the role of public-sector unions,” she wrote.

Janus, the plaintiff in the case, said in a statement that he was "thrilled that the Supreme Court has restored not only my First Amendment rights, but the rights of millions of other government workers across the country."

"So many of us have been forced to pay for political speech and policy positions with which we disagree, just so we can keep our jobs," he said. "This is a victory for all of us."

The AFSCME, the defendant, said in a statement that the high court ruled against the working class and in favor of rich CEOs and corporate interests.

"This case was nothing more than a blatant political attack to further rig our economy and democracy against everyday Americans in favor of the wealthy and powerful," the union said. "Today’s decision sends our economy in the wrong direction. But it is also a rallying point. We call on elected leaders and candidates to do everything in their power to make it easier to unite in unions and build more power for all working people."

Lily Eskelsen Garcia, president of the National Education Association, likewise called the ruling a "radical decision."

"Even though the Supreme Court sided with corporate CEOs and billionaires over working Americans, unions will continue to be the best vehicle on the path to the middle class," Garcia said.

President Donald Trump, meanwhile, took to Twitter to applaud Wednesday’s ruling.

He tweeted, “Supreme Court rules in favor of non-union workers who are now, as an example, able to support a candidate of his or her choice without having those who control the union deciding for them. Big loss for the coffers of the Democrats!"

Categories / Appeals, Employment, Government, National

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.