On September 29, 2017, the U.S. Supreme Court agreed to hear the case of Janus v. American Federation of State, Municipal and County Employees, a case involving “fair share” agency fees paid by public sector employees who are not union members. Several states, including Ohio, allow a public employer whose employees were represented by a union to require those of its employees who did not join the union nevertheless to pay fees to it because they benefited from the union’s collective bargaining agreement with the employer. These fees are meant to finance collective bargaining negotiations over working conditions that benefit both union and non-union members.
Mark Janus, an Illinois state employee, has asked the Court to overrule its prior decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which held that while public employees cannot be required to pay fees that will be used for the union’s political activity, they can be required to pay fees to cover the cost of contract negotiations. Janus has argued that even the fair share fee requirement is a violation of the First Amendment, because certain issues related to contract negotiations, like salaries and benefits, are inherently political, as they influence government policy.
Last year in Friedrichs v. Cal. Teachers Ass’n., 136 S.Ct. 1083 (2016), the Supreme Court issued a one sentence, 4-4 split decision affirming the Ninth Circuit Court of Appeals’ decision that upheld the California law requiring non-member public employees to pay union fair share fees. The Friedrichs case was decided shortly after Supreme Court Justice Antonin Scalia’s death, and it is believed by many that Justice Scalia would have voted to overturn the Abood case, thus breaking the tie. However, the 4-4 tie maintained the status quo and failed to overturn Abood. Now that the Court is back at full nine Justices, with Justice Neil Gorsuch filling the vacant seat created by Justice Scalia’s death, the Court may finally decide the fair share fee question once and for all.
Union supporters worry this challenge is part of a larger plan to limit the power of public unions. In recent history, a large portion of the labor movement’s growth has been in the public sector and it is believed that this case could ultimately decrease public sector union numbers.
If you have questions regarding how this could potentially impact your organization, feel free to contact an FHKAD attorney at (614) 221-1216.