Justices Will Try Again to Answer Union Fee Question

(CN) – After deadlocking last year in a similar case, the Supreme Court agreed Thursday to decide whether government-employee unions can 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.

In March, 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 appealed the dismissal to the Supreme Court in June, arguing the Abood decision “is inconsistent with this Court’s precedents requiring that instances of compelled speech and association satisfy heightened constitutional scrutiny.”

“Agency fees remain the largest regime of compelled speech in the nation,” his petition for writ of certiorari states.

The nation’s highest court agreed Thursday to take up the case and decide whether public employees can be forced “to pay agency fees to an exclusive representative for speaking and contracting with the government over policies that affect their profession.”

In a similar case decided last year, the eight-member Supreme Court deadlocked 4-4 on the issue. The addition of Justice Neil Gorsuch to the bench means it can now answer the question at issue.

Per their custom, the justices did not comment on their decision to decide Janus’ case.

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