The Supreme Court will soon issue a ruling on whether public employees, including teachers, can be required to pay union fees.
Nearly every U.S. Supreme Court case is significant, but this year brings a remarkable case with the potential of overturning 40-year-old precedent and dramatically changing public employment law. On February 26, the U.S. Supreme Court heard oral arguments on Janus v. American Federation of State, County, and Municipal Employees, a case involving public employee union fees. Although the parties are neither educators nor schools, this case is of interest to all unions who represent public workers, including teachers and other public school employees. It boils down to whether the government, as an employer, can require nonunion workers to contribute to the union.
Unions at the Supreme Court
The Janus case has a certain déjà vu feel to it. In January 2016, the U.S. Supreme Court heard oral arguments on Friedrichs v. California Teachers Association, 136 S.Ct. 1083 (2016), another case involving public employee union fees. There, Rebecca Friedrichs and nine other teachers who were not union members argued they should not be forced to pay “fair share” fees to the California Teachers Association. Fair share fees are the costs nonunion members are required to pay to the union to offset the union’s cost of representing the entire bargaining unit during negotiations and related discussions. The nonunion members who brought the case argued that the union expressed views with which they did not agree and that they should not be required to contribute funds to the group. However, the Ninth Circuit Court of Appeals held in favor of the union, basing its decision on the unanimous 1997 U.S. Supreme Court case, Abood v. Detroit Board of Education.
The rights of unions to collect various fees from nonunion members has been the subject of a number of Supreme Court decisions.
When the Friedrichs case went to the Supreme Court, most legal commentators predicted that the Court’s conservative justices would reach a bare majority decision against the fair share requirement, overturning the Ninth Circuit Court’s decision. But in February 2016, Justice Antonin Scalia passed away, and in March 2016, the Friedrichs case was released with what might be the shortest possible Supreme Court opinion: “The judgment is affirmed by an equally divided Court.” This means that since the lower court, the Ninth Circuit Court of Appeals, had ruled in favor of the California Teachers Association, and the eight-member Supreme Court was equally split on the issue, the decision in the union’s favor would remain.
The rights of unions to collect various fees from nonunion members has been the subject of a number of Supreme Court decisions, beginning with the Abood case cited in the Ninth Circuit ruling:
- Abood v. Detroit Board of Education,431 U.S. 209 (1977). In this case, the Court unanimously allowed unions to charge fair share fees to nonunion workers to pay for the cost of the collective bargaining the union provides to all workers in the bargaining unit, both members and nonmembers.
- Chicago Teachers Union v. Hudson,475 U.S. 292 (1986). This unanimous decision delineated some of the details of collecting fair share fees. The Court said that those who pay fair share fees should be able to object to fees and fee collections and have their objections attended to expeditiously. In addition, they must be provided information on how fees were calculated and used.
- Lehnert v. Ferris Faculty Association,500 U.S. 507(1991). This 5-4 decision is complex, with justices offering a number of concurrences and dissents. At a minimum, the case held that the fair share fees of nonunion members may not be spent on political lobbying and public relations.
- Knox v. Service Employees International Union,567 U.S. 298 (2012). The union involved had a special assessment for political activity, and in a 7-2 decision, the Court held that the union had to provide nonmembers the opportunity to opt out of the payment for that activity.
- Harris v. Quinn,573 U.S. (2014). This case addressed the question of whether fair share fees violate the rights of nonunion members to free speech and association when the state requiresemployees to pay them as part of their public employment contract. In the end, though, the 5-4 decision sidestepped the underlying question because it found that the nonunion parties involved in the case were not actually state and local government employees.
These cases represent some of the changes in the Court’s views on public employment and public employees’ unions over the last 30 years. But there also have been changes stemming from state legislatures. Public employment law, including education employment, varies from state to state and changes over time.
In 2007, most states allowed bargaining for some, if not all, public employees. These state statutes allowed for public employment unions, although most limited the unions’ activities. Most notably, many state statutes prohibited public union strikes and outlined a narrower scope of bargaining rights for the public employee unions than those set out in the National Labor Relations Act, which outlines collective bargaining rights for private employment (Slater, 2013). But as with state teacher contract laws (discussed in the April “Under the Law” column), over the last 10 years, state legislatures have scaled down public employment benefits, including pensions, wages, and public employment bargaining. For example, Wisconsin, Tennessee, Indiana, and Connecticut have enacted sweeping changes to their bargaining laws.
In Wisconsin, the state narrowed bargaining rights for most types of public employees, including educators. It restricted bargaining for most public employees to a single issue — base wages — and required an annual recertification of the bargaining unit: see the Wis. Legis. Serv. Act 10 (2011). In Tennessee, the legislature replaced educators’ bargaining with “collaborative conferencing,” eliminating exclusive representation of unions and allowing instead for multiple groups, apportioned by vote, to represent employees: Tenn. Code 49-5-601 (2011). The Indiana statute limits bargaining to salary and benefits: Ind. Code 20-29-6-7 (2011). And Connecticut restricted the scope of public union bargaining, excluding evaluations and retirement incentive plans: Conn. Gen. Stat. 10-153d(b) (2012).
The Janus argument
So here we are back in the Supreme Court with the same issue that was presented in the 2016 Friedrichs case: Are mandatory fair share fees constitutional in public employment contracts? In other words, should Abood v. Detroit Board of Education be overturned? However, this new case will be decided in a year when we have seen much greater union activism across the nation, including statewide teacher strikes in West Virginia, Oklahoma, and Kentucky. Also different this year is the addition of Justice Neil Gorsuch to the U.S. Supreme Court, creating a clear conservative majority.
Unions argue that negotiations are not forced political speech, but just part of the process of setting wages and working conditions.
In the current case, Illinois healthcare worker Mark Janus argues that he should not be forced to pay monthly union fees at all. He now pays about $540 in fair share fees, as opposed to the $1,000 membership fees to the American Federation of State, Court, and Municipal Employees, which collectively bargains for the unit in which he works.
Under the line of cases above, fair share fees may not be used for a union’s political work. But those challenging the fees want Abood to be overturned so that they do not have to compensate the union at all. In Janus, nonunion public employees argue that:
- The collective bargaining process itself is inherently political — if the state pays more to public employees it will have to spend less on other items.
- Resource decision making is political when you are dealing with public employment.
- Nonunion members should not be compelled to fund any type of union activity.
In sum, they argue that fair share fees force nonunion members to pay the union to lobby the government.
On the other hand, the unions argue that Abood should not be overturned because it would set public union negotiations into turmoil. They argue that the state:
- Has an interest in good labor and negotiation practices.
- Pays administrators and consultants to participate in wage setting and bargaining as an employer, and the cost of that is borne by taxpayers in general.
- Should have an interest in having both sides well represented during collective bargaining for employees.
In sum, they argue that negotiations are not forced political speech, but just part of the process of setting wages and working conditions.
This is definitely a case to watch. Most likely, there will not be a decision released until the end of the Supreme Court term, i.e., before the July 4 recess. And most likely, Justice Gorsuch (the Court’s newest justice) will cast the deciding vote.
Slater, J. (2013). The strangely unsettled state of public sector labor in the past thirty years. Hofstra Labor and Employment Law Journal, 30 (2).
JULIE UNDERWOOD (Julie.Underwood@wisc.edu) is the Susan Engeleiter Professor of Education Law, Policy, and Practice at the University of Wisconsin-Madison.
Originally published in May 2018 Phi Delta Kappan 99 (8), 76-77. © 2018 Phi Delta Kappa International. All rights reserved.