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Friday, June 29, 2018

Supreme Court Holding Hurts Public Sector Unions

In Janus v. AFSCME, Council 31 et al., 585 U.S. ___ (June 27, 2018) the Supreme Court of the United States, in a 5-4 decision, overruled its 1977 precedent and held that states cannot compel non-members of Unions representing public employees to pay agency (sometimes called fair share) fees, which presumably relate only to the Union’s collective bargaining activity. The majority opinion held that forcing non-members to pay these agency fees violates their free speech and freedom of association rights under the First Amendment to the U.S. Constitution.

The case involved the Illinois Public Labor Relations Act, which allows public employees to select a union as their exclusive bargaining representative.  Employees who are represented by the union, but who decline to join it, must pay an agency fee to cover the collective bargaining duties of the union, but are not required to pay full dues, which also pay for the union’s political and ideological projects. Holding the agency fee requirement to be unconstitutional, the Court overruled its Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977) decision, which upheld a similar agency fee as constitutional. The dissent in Janus accused the majority of using the First Amendment to intervene in economic and regulatory policy and stated there was no good reason to overrule Abood, which it said struck a balance between First Amendment rights and governments’ interests in running their workforces.  

The decision likely applies to other states that require such agency fees. The decision does not apply to private sector or federal employees. While Missouri statutes relating to public employee bargaining (R.S.Mo §105.500 et seq.) do not require payment of an agency fee, the Missouri Court of Appeals upheld a fair share provision in a collective bargaining agreement in Schaffer v. Bd. of Ed. of the City of St. Louis, 869 S.W.2d 163 (E.D. Mo. 1993). To the extent it compels payment of fair share fees, that decision likely will no longer be followed in Missouri because of the holding in Janus.  

The Janus decision probably will hurt unions representing public sector employees because they will lose the agency fee revenues from non-members.    

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.  The choice of a lawyer is an important decision and should not be based solely on advertising.

This update was prepared by Charles S. Elbert and Erin M. Leach.

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