Supreme Court deals blow to public-sector unions, ruling against ‘fair-share’ fees

The Supreme Court dealt a major blow to state and local public-sector unions on Wednesday, ruling that nonunion members can’t be forced to pay a “fair-share” union fee.

In a 5-4 ruling, the court struck down an Illinois law, similar to laws in 22 other states, that allowed agencies to collect fees from nonunion members for collective bargaining.

The court’s conservative majority led by Justice Samuel Alito ruled that the law violates the First Amendment because it compels the employee to support a union message they may oppose.

“Neither an agency fee nor any other payment to the union may be deducted from the nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay,” Alito wrote. 

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In reaching its decision, the majority overturned a 1977 court precedent from Abood v. Detroit Board of Education that allowed public-sector unions to accept fees from nonmembers to cover nonpolitical union activities.

Alito said Abood was poorly reasoned and wrongly decided.  

The court’s newest member, Justice Neil Gorsuch, likely cast the deciding vote in the dispute. The justices in 2016 were deadlocked in a 4-4 split in a similar case, known as Friedrichs v. California Teachers Association, following the death of Justice Antonin Scalia. 

Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Gorsuch sided with Alito in the majority.

Justice Elena Kagan issued a scathing dissent, which her liberal colleagues, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, joined.

She accused her colleagues of “weaponizing” the First Amendment. Reading an abridged version of her dissent from the bench, she said the majority has chosen the winners by “turning the First Amendment into a sword and using it against workaday economic and regulatory policy.”

“It has overruled Abood because it wanted to. Because, that is, it wanted to pick the winning side in what should be – and until now, has been – an energetic policy debate,” she said.

The case centers on Mark Janus, an Illinois state child support specialist, who challenged the law which forced him to have to pay $45 from each paycheck to the American Federation of State, County and Municipal Employees (AFSCME) Council 31. Janus said the fees were supporting union messaging he opposes.

AFSCME and other public sector unions argue they need the “fair-share” fees to offset the significant costs they incur in negotiating for better pay and working conditions, which they say benefits all employees and not just members.

Without state laws allowing unions to collect these fees, they say nonunion members will get a “free ride.” 

Kagan warned that the court’s decision will not only cause public employee unions to lose secure sources of funding, but force them to renegotiate settled terms in current contracts that allow them to collect agency fees.

“It does so with no real clue of what will happen next — of how its action will alter public-sector labor relations,” she said of the ruling. “It does so even though the government services affected — policing, firefighting, teaching, transportation, sanitation (and more) — affect the quality of life of tens of millions of Americans.”

But opponents of such laws cheered the court’s ruling.

Illinois Gov. Bruce Rauner (R), who tried to challenge the state law after he took office, told The Hill Wednesday that public-sector unions are inherently political.

“Everything they do impacts government spending and taxpayers,” he said. “There’s no distinction between political and nonpolitical activity.”

The Department of Justice echoed that argument in a statement praising the court’s ruling.

“Public employees should not be forced to pay into a union against their will and support a political message with which they may disagree,” DOJ spokeswoman Kerri Kupec said.

“Today’s decision ensures that American workers in the public sector retain their First Amendment freedom to support only the organizations and speech of their choice.”

Unions, however, saw the lawsuit and the ruling as a political attack on the labor movement.

Lee Saunders, the president at AFSCME, said that in overturning Abood the court tossed out a longstanding precedent that fostered labor peace.

“Unions will always be the most effective force and vehicle to propel working people into the middle class. Despite this unprecedented and nefarious political attack — designed to further rig the rules against working people — nothing changes the fact that America needs unions now more than ever,” said Saunders.

“We are more resolved than ever to fight like hell to win for our members and the communities they care so much about.”

Jacob Huebert, an attorney from the Liberty Justice Center, which represented Janus along with the National Right to Work Legal Defense Foundation Inc., however, called the ruling the biggest victory for workers’ rights in a generation.

“The First Amendment guarantees each of us, as individuals, the right to choose which groups we will and won’t support with our money,” he said. “Today the Supreme Court recognized that no one should be forced to give up that right just to be allowed to work in government.”

Updated at 2:35 p.m.