Attack on Public Sector Unions Positions First Amendment Against Workers

By Katherine Enright

One case pending before the Supreme Court of the United States this term has the potential to disrupt the functioning of unions all around the country.  On September 28, 2017, the Court granted certiorari in the matter of Janus v. American Federation of State, County, and Municipal Employees, Council 31.  The case arises from Illinois[1] and presents the question of whether the Court’s decision in Abood v. Detroit Board of Education,[2] should be overruled and public-sector “agency shops” deemed unconstitutional under the First Amendment.

Many states, including Illinois, have laws that permit a public-sector union to be elected as the exclusive representative of a class of public employees.[3]  As the exclusive representative, the union is obligated to negotiate on behalf of all the employees it represents, regardless of union membership.[4]  In order to “promote labor peace” and avoid “free-riders,”  these unions are permitted to exact fees from non-union employees (“fair share” fees) to fund the costs of collective bargaining.  Arrangements such as this are referred to as “agency shops,” and have been the subject of numerous cases in front of the Supreme Court in the last 40 years.[5]

Non-union members who object to paying “fair share” fees have repeatedly argued that these arrangements are an unconstitutional violation of their First Amendment rights, as they are being compelled to associate with a union with which they disagree, and to fund the activities of that union.  In the public-sector, where even routine subjects of collective bargaining are inherently political, the problem of compelled association becomes even more difficult.

Abood and the cases that followed attempted to alleviate this problem by prohibiting unions from using “fair share” fees to fund speech that is political or ideological in nature.  However, courts have encountered difficulties (in the context of public sector unions) in determining whether challenged union expenditures are “germane to collective bargaining” (and therefore chargeable to non-union employees) or not.[6]

The Petitioner in Janus is arguing that Abood should be overruled because it failed to apply the necessary level of scrutiny to public-sector agency shops.  He contends that these arrangements cannot survive heightened First Amendment scrutiny and Abood must be overturned.  Whether or not that is true is a question for the Court.  The same question was presented in 2016 in Friedrichs v. California Teachers Association, 136 S.Ct. 1083 (2016); however, following the death of Justice Scalia, the Court split 4 to 4 on the question of whether to overrule Abood.  It is likely that Justice Gorsuch will be the fifth and deciding vote to overturn the 40 year old decision.

The potential effects of overruling Abood are so substantial that no less than 26 amicus briefs have been filed in the case.[7]  Janus is represented by the National Right to Work Legal Defense Foundation, an arm of the National Right to Work Committee (“NRTWC”), which has strong ties to the national right-wing network led by the Koch brothers.[8]  NRTWC has lobbied extensively for “right to work” bills drafted by the American Legislative Exchange Council (“ALEC”).[9]  Overruling Abood would be a huge victory for the organization, whose mission is to eliminate union power.[10]

Conversely, a decision to overrule Abood could have a devastating impact on public-sector unions and the individuals they represent.  Such a decision would likely bring about a drastic decrease in union membership and power in collective bargaining.[11]  According to the Economic Policy Institute, historically, as the rate of union membership decreases, the income share of the richest ten percent of Americans increases.[12]

This could be a terrible blow to the middle class.  Workers represented by unions generally have increased job security, earn higher wages, and have more inclusive benefit packages.[13]  If Abood is overruled and union power in collective bargaining is decreased, many public employees will suffer a substantial loss.  This is especially true for minority workers, who are afforded much greater protection when represented by a union.

The case will likely be argued in January or February and decided before the end of the Court’s term in June.  Until then, public-sector unions will have to hope for the best but prepare for the worst.




[1]The case has a very strange procedural posture.  On February 9, 2015, Illinois Governor Bruce Rauner signed an executive order directing “fair-share” fees to be held in escrow.  The Governor then initiated a declaratory judgment action against all the unions in Illinois that represent state employees, including AFSCME, asserting that “fair-share” fees violate the First Amendment.  The Attorney General of Illinois intervened in defense of the Illinois Public Labor Relations Act.  She, along with other Respondents, moved to dismiss the suit, arguing that the district court lacked Article II jurisdiction because the Governor did not have standing to sue, in that his complaint did not allege a violation of his First Amendment rights.

While the motions to dismiss were pending, Janus and two other non-union state employees (who have since been dismissed from the action) moved to intervene as plaintiffs.  Petitioner, a non-union public-sector employee represented by AFSCME in the context of its collective-bargaining agreement with the government, sought to intervene, arguing that requiring him to pay “fair share” fees is a violation of his freedoms of speech and association.

The district court, in one order, granted Respondents’ motion to dismiss the Governor’s action due to the standing issue, granted Petitioner’s motion to intervene, and granted Respondents’ motion to dismiss the interveners’ action on the merits, pursuant to Abood.

[2] Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

[3] Illinois Public Labor Relations Act, 5 ILCS 315.1 et seq.

[4] Id.

[5] See Ellis v. Brotherhood of Ry. Airline, and S.S. Clerks, 466 U.S. 435 (1986); Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991); Board of Regents of University of Wisconsin System v. Southworth, 529 U.S. 217 (2000); Knox v. Service Employees International Union, Local 1000, 567 U.S. 298 (2012); Harris v. Quinn, 134 S.Ct. 2618 (2014); Friedrichs v. California Teachers Association, 136 S.Ct. 1083 (2016).

[6] See generally Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991).



[9] Id.


[11] “The Michigan affiliate of the National Education Association, for instance, has lost nearly 24,000 members since changes in its state law in 2012 (that’s about a 16 percent reduction), and its annual receipts have dropped by about $10 million, according to records filed with the federal Labor Department.”





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