The U.S. Supreme Court is set to hear the issue of whether public sector agency shop arrangements violate the First Amendment.
In the matter of Janus v. American Federation of State, County, and Municipal Employees, Council 31, Docket No. 16-1466, the governor of Illinois, along with two public sector employees, brought suit challenging a law that allows public sector employers to require nonmember employees to pay a fee to the union. The governor alleged the law violates the First Amendment by forcing public employees to contribute money to an organization that they may not approve of. The district court looked to the landmark U.S. Supreme Court case, Abood v. Detroit Board of Education, on the issue for precedent and dismissed the suit. The Seventh Circuit affirmed.
Abood v. Detroit Board of Education, 431 U.S. 209 (1977), involved a Michigan law authorizing union representation of public sector employees through an agency shop arrangement. The agency shop arrangement required all employees represented by the union, even if the employee is not a union member, to pay a fee as a condition of employment. A group of teachers filed suit alleging they opposed unions in the public sector, that the union was engaged in political activities the teachers did not approve and were not related to the collective bargaining activities, and requested the agency shop clause be declared invalid under state law and the U.S. Constitution. The U.S. Supreme Court ultimately held that the service charges used to finance expenditures by the union for collective bargaining, contract administration, and grievance adjustment purposes, are valid. Union expenditures not germane to its duties as a collective bargaining representative, however, must be financed from employees who do not object to advancing those causes or coerced into doing so against their will by threat of loss of employment.
Just last year, the U.S. Supreme Court examined this very issue in Friedrichs v. California Teachers Association, Docket No. 14-915, and found for the teachers union in an equally divided court. The decision came just after the death of Justice Antonin Scalia, who many believed was positioned to rule against the union.
Now the U.S. Supreme Court has decided to examine the issue during the 2018 docket with Janus v. American Federation. It is widely anticipated Justice Neil Gorsuch will find in favor of the public sector employees and rule against the unions.
The outcome of this case will have a wide reaching impact on the power of public sector unions, particularly as it affects whether the unions can collect a large source of their revenue.