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Supreme Court Strikes Down Agency/Fair Share Fees

June 28, 2018

By Noah R. Jordan, Esq.

On June 27, 2018 the Supreme Court, in a 5-4 decision, declared the collection of agency fees by public sector unions to be an unconstitutional violation of the First Amendment.  In so ruling, the Court overturned its 1977 decision in Abood v. Detroit Board of Education, in which the Court had upheld the constitutionality of agency fees.  The case, Janus v. AFSCME Council 31, involved a challenge by Mark Janus, an Illinois state employee whose unit is represented by a public sector union, who asserted that being forced to pay an agency fee, often referred to as fair share, to his union violated his First Amendment rights.  He claimed that because he did not support positions taken by his union in collective bargaining, being forced to pay an agency fee was tantamount to being compelled to support speech to which he was opposed.

Mr. Janus’ lawsuit was supported by several anti-union groups who previously had unsuccessfully made the exact same argument before the Court, most recently in 2016 in the matter of Friedrichs v. California Teachers Association.  In that case the Court issued a split, 4-4 decision (only 8 justices were on the Court at that time due to the death of Justice Antonin Scalia whose seat had not yet been filled) which had the effect of upholding the ruling of the 9th Circuit Court of Appeals, from which the petitioner, Ms. Friedrichs had appealed, which upheld the constitutionality of agency fees.  Since that ruling, Senate Republicans were successful in blocking President Obama from appointing Merrick Garland to the Court and instead, confirmed President Trump’s nomination of Justice Neal Gorsuch.  Justice Gorsuch joined with the Court’s 4 other conservative justices, Kennedy, Roberts, Thomas, and the author of the opinion, Alito, in striking down 40 years of precedent.

The Court’s ruling takes effect immediately.  As of the date the opinion was issued, it is illegal for a public sector union to charge nonmembers an agency fee and for a public sector employer to deduct an agency fee from an employee’s paycheck.  Any public sector union party to a Collective Bargaining Agreement with a fair share provision should take the following steps immediately if they have not done so already:

  1. Inform employers who are party to such CBAs that agency/fair share fee deductions must cease immediately and that any deductions made on or after June 27, 2018 be immediately returned to any nonmembers from whose paychecks deductions were made;
  2. Fair share provisions should be removed from CBAs; this can be done through entering into a Memorandum of Agreement/Understanding with the employer for any CBA that currently is in effect;
  3. Public sector unions currently in negotiations with employers for a new CBA should demand that fair share language be removed from the new CBA

The Court’s decision did not address maintenance of membership provisions, so such language in any public sector union’s CBA will remain in full force and effect.

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