By: Michael S. Hopkins
On June 27, 2018, the U.S. Supreme Court handed down its decision in Janus v. AFSCME, Council 31, overturning what had been standing precedent for the last 41 years regarding the First Amendment rights of public sector employees who choose not to join a public-sector union and who fundamentally – or less than fundamentally – disagree with the union’s activities and positions.
In 1977, with Justice Stewart delivering its opinion, the Supreme Court held in Abood v. Detroit Board of Education that public employees who chose not to join the union acting as the exclusive representative of both union and nonunion public-sector employees could be required to pay an “agency fee,” which essentially boiled down to a “fair share” fee for the union’s activities related to collective bargaining. Nonunion members were ostensibly required to pay the agency fee because they benefitted from the union’s representation. However, the Court held that it would be unconstitutional for the nonunion employees to be required – over and above collective bargaining activities – to fund a union’s political activities with which they disagreed.
At issue in Janus was the constitutionality of the Illinois Public Labor Relations Act, which, while not making union membership mandatory, did make the payment of the agency fee by nonunion members mandatory, though not at the full percentage of union dues.
The Act was clearly constitutional under Abood, which divided expenditures that were “chargeable” to nonunion members (i.e. charges for activities related to collective bargaining) from “nonchargeable” expenditures (i.e. a union’s funding of “political and ideological projects.”)
Thus, there was no impediment under Abood to a union’s requiring payment from nonunion employees for the union’s work in terms of contract negotiations, which would govern the working conditions of union and nonunion employees alike.
Enter Mark Janus, a nonunion public-sector employee in Illinois who questioned the chargeable divide approved in Abood. Janus objected not only to the political activities of the union, the American Federation of State, County, and Municipal Employees, Council 31 (AFSCME), but to AFSCME’s positions in collective bargaining, as well, previously safe ground for unions under Abood.
From Janus’s perspective, the very act of AFSCME’s bargaining implicated positions and conduct to which he was opposed. According to the Court, Janus took umbrage with AFSCME’s public policy positions and its disregard for the Illinois’ fiscal crisis. Ultimately, AFSCME’s bargaining tactics, per Janus, did not “reflect his best interests or the interests of Illinois citizens.”
Given his beliefs, if the required agency fee were not compulsory, Janus would not pay any fees that would support AFSCME. He argued that the agency fee deductions were “coerced political speech” in violation of the First Amendment.
The Janus Court, with Justice Alito delivering the Court’s opinion, expressly overruled Abood, calling the opinion “poorly reasoned” and an anomaly in the Court’s First Amendment jurisprudence. In doing so, the Court laid out a bedrock First Amendment principle that “freedom of speech” ‘includes both the right to speak freely and the right to refrain from speaking at all.’” The Court noted that this principle regarding speech extends to the right of association, and that protected speech may not be burdened through forced associations.
As summarized by the Court,
Free speech serves many ends. It is essential to our democratic form of government, and it furthers the search for truth. Whenever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends.
The Court stated that compelled speech is particularly egregious in that it requires individuals to betray their convictions and that forcing “free and independent individuals to endorse ideas they find objectionable is always demeaning. . . .”
With these principles in mind and reviewing Abood under an “exacting scrutiny” standard, the Court ruled that Abood’s postulated state interests in favor of upholding agency fees failed. The Court addressed the first interest, articulated in Abood as buying labor peace by allowing for an exclusive bargaining representative, ostensibly to avoid the difficulties that would arise were more than one union to provide active representation in the workplace. The Janus Court found that Abood’s prediction of labor chaos were such exclusivity not allowed was unsupported at the time Abood was decided and, in any event, had been proven unwarranted over time, particularly in light of federal law, which allows for exclusive union representation, but does not allow agency fees.
The Abood Court’s second postulated interest was the prevention of “free riders,” employees who gain all of the benefits of union representation but pay none of its freight. The Janus Court dismissed this argument out of hand, reasoning that discouraging so-called “free riders” was “insufficient to overcome First Amendment objections.”
Moreover, as the Court took time to note, Janus had argued that he was not a free rider at all, but an unwilling passenger being taking to a destination he wanted to avoid in the first place.
Ultimately, and after a lengthy analysis regarding the propriety of overturning Abood after 41 years, the Court held the requirement under the Act that an agency fee be deducted from nonconsenting employees’ pay violates the First Amendment and that “public-sector unions may no longer extract agency fees from nonconsenting employees.”
Consent, the Court held, would be a waiver of First Amendment rights, and no presumption of such a waiver can be made without being “freely given and shown by ‘clear and compelling’ evidence.”
Perhaps to punctuate the majority’s assessment of the impact 41 years of Abood’s contrary ruling had had, the Court posited that it was “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.”
As noted in by Justice Kagan in her dissent, the majority’s undoing what had been established law for more than four decades “undoes bargains reached all over the country.” She elaborated, stating:
It prevents the parties from fulfilling other commitments they have made based on those agreements. If forces parties – immediately – to renegotiate once-settled terms and create new tradeoffs.
Justice Kagan further noted that these negotiations must take place in an uncertain climate in which states will scramble to enact legislation that in response to Janus.
Clearly, Janus has major implications for public sector employers, but offers few guideposts to show the way. While it is safe to say legal counsel should be consulted in every collective bargaining agreement negotiation, Janus highlights the important role legal counsel will have to play following the uncertainty left in Janus’s wake.
- Higher than a rational basis standard, but lower than a strict scrutiny standard, the exacting scrutiny standard, which had been applied to cases involving the compulsory subsidization of commercial speech, was applied by the Court in reviewing the rationale in Abood. As the Court explained, this standard is less demanding than strict scrutiny, yet the Court did not go so far as to hold that strict scrutiny was not the correct standard for noncommercial First Amendment cases such as Janus.