Janus v. AFSCME Decision

Before speculating on what this will do to union membership and multiemployer plans let’s read the Supreme Court opinion. I see a basic flaw in both arguments that I will present in the next blog but, for now, here are some excerpts that I found pertinent:

Non-members are required to pay what is generally called an “agency fee,” i.e. , a percentage of the full union dues. Under Abood v. Detroit Bd. of Ed. , 431 U. S. 209, 235–236, this fee may cover union expenditures attributable to those activities “germane” to the union’s collective-bargaining activities (chargeable expenditures), but may not cover the union’s political and ideological projects (nonchargeable expenditures). The union sets the agency fee annually and then sends non-members a notice explaining the basis for the fee and the breakdown of expenditures. Here it was 78.06% of full union dues. (page 1)

For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. (page 5)

Alito For the Court:

After the amount of the agency fee is fixed each year, the union must send nonmembers what is known as a Hudson notice. See Teachers v. Hudson, 475 U. S. 292 (1986). This notice is supposed to provide nonmembers with “an adequate explanation of the basis for the [agency] fee.” Id. , at 310. If nonmembers “suspect that a union has improperly put certain expenses in the [chargeable] cate­gory,” they may challenge that determination. (page 9)

Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues—say, the platform of one of the major political parties. No on e, we trust, would seriously argue that the First Amendment permits this. (page 13)

The federal employment experience is illustrative. Under federal law, a union chosen by majority vote is designated as the exclusive representative of all the em­ployees, but federal law does not permit agency fees. See 5 U. S. C. §§7102, 7111(a), 7114(a). Nevertheless, nearly a million federal employees—about 27% of the federal workforce—are union members. The situation in the Postal Service is similar. Although permitted to choose an exclu­sive representative, Postal Service employees are not required to pay an agency fee, 39 U. S. C. §§1203(a), 1209(c), and about 400,000 are union members. Like­wise, millions of public employees in the 28 States that have laws generally prohibiting agency fees are represented
by unions that serve as the exclusive representatives of all the employees. (page 17)

Suppose that a particular group lobbies or speaks out on behalf of what it thinks are the needs of senior citizens or veterans or physicians, to take just a few examples. Could the government require that all seniors, veterans, or doctors pay for that service even if they object? (page 18)

As of 2013, Illinois had nearly $160 billion in unfunded pension and retiree healthcare liabilities. By 2017, that number had only grown, and the State was grappling with $15 billion in unpaid bills. We are told that a “quarter of the budget is now devoted to paying down” those liabilities. These problems and others led Moody’s and S&P to downgrade Illinois’ credit rating to “one step above junk”—the “lowest ranking on record for a U. S. state.” (page 33)

Objecting employees also face a daunting and expensive task if they wish to challenge union chargeability deter­minations. While Hudson requires a union to provide nonmembers with “sufficient information to gauge the propriety of the union’s fee,” 475 U. S., at 306, the Hudson notice in the present case and in others that have come before us do not begin to permit a nonmember to make such a determination. (page 45)

We recognize that the loss of payments from nonmem­bers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the consider­able windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many bil­lions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely. (page 52)

Sotomayor Dissenting:

Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways. (page 57)

The key point about Abood is that it fit naturally with this Court’s consistent teaching about the permissibility of regulating public employees’ speech. The Court allows a government entity to regulate that expression in aid of managing its workforce to effectively provide public services. That is just what a government aims to do when it enforces a fair-share agreement. And so, the key point about today’s decision is that it creates an unjustified hole in the law, applicable to union fees alone. This case is sui generis among those addressing public employee speech—and will almost surely remain so. (page 74)

Over 20 States have by now enacted statutes authorizing fair-share provisions. To be precise, 22 States, the District of Columbia, and Puerto Rico—plus another two States for police and firefighter unions. Many of those States have multiple statutory provisions, with variations for different categories of public employees. See, e.g., Brief for State of California as Amicus Curiae 24–25. Every one of them will now need to come up with new ways—elaborated in new statutes—to structure relations between government employers and their workers. (page 78)

There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law — and in its economic life — for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy. (page 81)