Justices Appear Split on Mandatory Union Fees

High court heard arguments on whether government employees can be forced to pay unions

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP February 27, 2018
Justices Appear Split on Mandatory Union Fees

Can public-sector employees be required to pay union fees as a condition of employment? The U.S. Supreme Court heard oral argument on Feb. 26 in a case that asks this question. The high court's answer could have a tremendous effect on union viability.

A ruling against mandatory fees in this case would create a "right-to-work" system for public-sector employees in the affected states, whereby employees could reap the benefits of representation without paying dues or fees, said David Broderick, an attorney with Littler in Newark, N.J. "The potential impact could be devastating to public-sector unions, which will undoubtedly realize a decrease in revenue and dues-paying members."

[SHRM members-only HR Q&A: What is a "right-to-work" state?]

Currently, 28 states have right-to-work laws that make it illegal for an employer and a union to agree that workers will have to pay union fees as a condition of employment.

This isn't the first time that eight of the nine current Supreme Court justices have considered the question, but they have yet to answer it. The conservative majority is expected to side with the employee in this case and ban mandatory public-sector union fees—but the liberal justices engaged in a heated debate during oral argument while some of the conservative justices were quiet.

Free Speech vs. Free Riding

Mark Janus, an Illinois state employee, claims that mandatory union fees are unconstitutional under the First Amendment's rights to free speech and association.

Janus asked the court to overturn its 1977 ruling in Abood v. Detroit Board of Education. In that case, the high court held that government employees could be required to pay "agency" or "fair share" fees to cover the cost of collective bargaining, contract administration and grievance adjustments—but employees can't be forced to cover political activities, such as lobbying.

In the current case, Janus argued that collective bargaining is inherently political. "Abood should be overruled because it failed to apply heightened First Amendment scrutiny to a compulsory fee for speech to influence governmental policies," said William Messenger, an attorney with the National Right to Work Legal Defense Foundation in Springfield, Va., who argued for Janus before the Supreme Court.

"Janus gives the Supreme Court the opportunity to fix an unfortunate violation of the First Amendment rights of American workers who are currently forced to either pay for a union that does not represent their political views or give up their government jobs," noted Michael Sullivan, an attorney with Goldberg Kohn in Chicago who represents employers.

Union advocates, however, argue that agency fees prevent workers from "free riding," or reaping the benefits of union representation without paying for it. 

Agency fees are a condition of public employment because they pay for workplace services—not just collective bargaining, but also day-to-day workplace grievance resolution under an employment contract, said David Franklin, solicitor general of Illinois, at the oral argument.

Divided Court

The justices considered the same issue in Friedrichs v. California Teachers Association, No. 14-915. Experts who closely watched the case predicted that it would be decided 5-4 in favor of the worker who opposed mandatory fees, with Justice Antonin Scalia voting in the majority. However, Scalia passed away in February 2016 before a decision was reached, and the remaining justices deadlocked with a 4-4 vote.

The tie vote in Friedrichs left intact a 9th U.S. Circuit Court of Appeals ruling that such fees are permissible. Since then, conservative Justice Neil Gorsuch has joined the Supreme Court, and he could break the tie. 

Though Gorsuch will likely cast the deciding vote in this case, he was notably silent during the argument. The other justices' questions and comments echoed their prior positions on the matter. The justices are likely reluctant to change positions a mere two years after their vote in Friedrichs, Broderick said.

Justice Sonia Sotomayor asked: If the government has a compelling interest as an employer to fire someone, why can't it have an interest in deciding issues of workplace peace and workplace routine in a collective way? "I thought that we had always recognized that the government as employer had a compelling interest in regulating its employment decisions," she said.

But Justice Anthony Kennedy raised concerns about requiring government workers to pay for third-party representation in employment matters. "What we're talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly," he said.


A ruling in favor of Janus would have a dramatic effect on the way that public-sector unions function and on their current role in the political arena, Sullivan said.

U.S. House of Representatives Minority Leader Nancy Pelosi, D-Calif., however, said the case is "yet another dangerous attempt by powerful special interests to weaken unions and set back progress for workers."

"The Supreme Court must once again affirm the right of working men and women to join together to build a future of opportunity and prosperity for themselves, their families and all Americans," she said in a press statement.

The case is Janus v. American Federation of State, County, and Municipal Employees, Council 31, U.S., No. 16-1466.


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