Janus Ruling Could Cost Unions Hundreds of Millions

Majority ruled that mandating union fees violates the free speech rights of workers

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June 28, 2018

The Supreme Court has put an end to compulsory union dues and fees for government workers, spurring praise from labor watchdogs and public outcry from organized labor.

A five-justice majority ruled that mandating union fees as a condition of employment violates the free speech rights of workers. The ruling in Janus v. American Federation of State, County, & Municipal Employees overturned the 1977 Abood precedent, which allowed compulsory unionism as a means of promoting labor harmony. Justice Samuel Alito, writing for the majority, said the government should not force workers to finance political speech against their will.

"The State's extraction of agency fees from nonconsenting public-sector employees violates the First Amendment," the ruling written by Justice Alito said. "Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns ... employees must choose to support the union before anything is taken from them."

Labor organizations took issue with the ruling arguing that it could create a "free rider" problem as workers reap the benefits of collective bargaining and grievance representation without paying for it. Federal labor law requires any labor organization with sole representation to cover all workers in a workplace regardless of their membership status. The Pennsylvania AFL-CIO counts more than 100,000 public-sector workers in its ranks, according to President Rick Bloomingdale. He said the fee structure of the past 41 years was appropriate to ensuring people pay for the costs of the services they enjoy from unions.

"Businesses are not mandated to give away goods and services free of charge to whomever walks through their door. But labor unions are," Bloomingdale said in a statement. "Every worker benefits from the terms of the union contract, and fair share fees cover the cost of that representation and negotiation. We know that union contracts lift up wages and improve conditions for all workers."

Under Abood, workers could opt to pay partial dues known as agency fees, which cover representational activities without funding political activities. Several state workers in Illinois protested, saying that because government unions affect state budgets and policies, they are inherently political organizations. Labor watchdogs and free market advocates said these groups used dues to support the campaigns of the very bosses with whom they were going to negotiate. Americans for Tax Reform president Grover Norquist called the Janus case the "most consequential victory for civil rights" in decades.

"The greatest assault on American democracy is the outrage of billions of dollars of forced union dues taken from workers without their consent and spent to buy elections over a 50 year period," he said in a statement. "No American should be forced to join any organization or pay cash to others as a requirement to earn and keep their job."

Mailee Smith, staff attorney and labor expert at the Illinois Policy Institute, which supported the workers in the case, said government unions have wielded considerable influence on the heavily Democratic state thanks to their large political spending. She praised the Court for recognizing the political nature of their work, adding that it would also benefit taxpayers in the long run.

"Union spending is intensely partisan and often does not reflect the views of the workers who are forced to give these unions a portion of their paycheck," Smith said in a statement. "In Illinois, government unions have spent decades funneling funds into a political scheme that has propped up Illinois's status quo to the detriment of Illinois taxpayers. Today's ruling is a win for government workers across the country who should never have been forced to compromise their freedom of speech."

Lawmakers were also divided over the ruling with Republicans welcoming the decision and Democrats condemning it. Sen. Ben Sasse (R., Neb.) praised the decision as a "victory for the First Amendment and a victory for the rights of workers."

"Anyone who thinks that Americans need to be persuaded to have money taken out of their checks, rather than compelled to do so against their wishes by government unions, should applaud this decision," Sasse said in a statement. "If you want someone's support, make an argument not a mandate."

Rep. Donald Norcross (D., N.J.), an electrician by trade and former president of the Southern New Jersey AFL-CIO, said the case would "rig the economy even more against working people." He said it would incentivize workers to withhold contributing to union ranks and weaken their negotiating leverage with employers.

"The goal in the Janus case was obvious: to divide workers and silence their voices," he said in a release. "I sat at the negotiating table fighting for working families for decades, and I'm outraged at the recent attacks on the rank-and-file men and women who power our economy."

Litigation may continue for years to come. Already a number of class action lawsuits have been filed in multiple states from public-sector workers seeking refunds on their past agency fee payments.