By Associate Attorney Matt Carpenter
On Thursday, the United States Supreme Court agreed to hear Janus vs. AFSCME, Council 31. Plaintiffs, including Illinois public employee Mark Janus, allege "fair share" fees violate their First Amendment rights.
Contrary to prevalent beliefs, workers in bargaining units covered by collective bargaining agreements are not required to be union members. Instead, non-members are often required to pay "fair share" fees since unions represent and negotiate terms and conditions of work on behalf of both members and non-members. A "fair share" or “agency” fee constitutes the cost of representation (including benefits such as contract negotiations and grievance administration) and excludes membership dues to the union.
Plaintiffs and their supporters allege that requiring non-members to support organizations with which they do not necessarily agree violates their First Amendment rights. Unions contend that allowing covered employees to opt out of paying fees will weaken them and create a sect of “free rider” employees who benefit from union representation without paying a dime.
This is the third attempt to override the Court's 1977 Abood v. Detroit Board of Education decision, in which the Court unanimously upheld a public sector union's right to assess “fair share” fees.
Last year, via a 4-4 decision, the Court upheld a lower court's ruling in Friedrichs v. California Teachers Association, thus protecting public sector unions' rights to levy “fair share” fees. However, following the failure to seat Merrick Garland and the subsequent confirmation of Justice Neil Gorsuch, public sector unions should expect the Court's conservative wing to deal a blow to labor rights. "CTM Legal Group urges our clients to prepare accordingly," said Joe Coli, Partner at CTM Legal Group. This includes focused internal organizing efforts, employee education, expansion of union-only benefits and bargaining appropriate language into collective bargaining agreements.
Court observers expect the Supreme Court to hear Janus v. AFSCME in early 2018 and to issue a decision later next year.
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