The Janus Case — You can Expect the End of Fair Share Fees for Public Sector Unions

Forty years ago, the United States Supreme Court held in Abood v. Detroit Board of Education, that employees who elect not to join the union representing them may still be required to pay the fair share of the cost associated with the union’s collective bargaining activities (also called “agency fees”).  This decision of common sense and fairness is expected to be overturned by the Supreme Court when Illinois Governor Bruce Rauner along with the attorney generals of 10 other states have their way.  With President Trump’s appointment of Neil Gorsuch to the Supreme Court earlier this year, the conservative majority now has the 5 votes it needs to overturn 40 years of precedence.

During the current session, the Supreme Court will hear oral argument in the case of Janus v. AFSCME, which was originally filed by Governor Rauner in February of 2015 around the same time he began negotiations with AFSCME Council 31 over 12 issues of collective bargaining.  (Talk about bargaining in bad faith.)  Not surprisingly, negotiations reached impasse in early 2016.  The suit was ultimately renamed for Mark Janus who is an employee of the state of Illinois and who claims he should not be “forced” to pay an agency fee since his First Amendment rights are being violated.

Plaintiff argues that agency fees are a form of “political patronage” and “requir[e] Illinois public employees to financially support advocacy groups with agendas closely aligned with [the Democratic Party].” Notwithstanding the political bent of that statement which is found in plaintiff’s brief, nothing, however, when it comes to agency fees could be further from the truth.  Activities such as contract negotiations, ratification and printing costs; grievance handling and arbitrations; research; strike related activities; legal expenses; educational programs; insurance costs; and training sessions, to name just a few, have been recognized since the time of the Abood decision to be chargeable to all unit employees — after an audit of expenditures — regardless of whether the unit employees elect to join the union. Despite this partial list and the use of audit procedures, plaintiff claims that it is nearly impossible to distinguish between a union’s bargaining activities and its lobbying efforts. These core activities are the heart and sole of what a union is there to do — protect the interests of its members and unit employees. Other expenses, such as donations to candidates for political office, lobbying initiatives and ballot measures, are easily distinguishable from a union’s representative activities and members have the right not to contribute towards political action.

Plaintiff and the 10 attorney generals who have filed an amicus brief, support the proposition that nonmembers should not be compelled to “pay for services that they may not want and in any event have not agreed to fund.” The ignorance of this statement can be found in the fact that the services plaintiff may not want would include grievance handling and arbitration, in the event that he finds himself in the cross-hairs of his employer.  Surely upon that situation arising he will not only want but demand union representation.  In fact, this is a responsibility called the “duty of fair representation” and nowhere in his brief does plaintiff acknowledge that if he is successful before the Supreme Court, AFSCME Local 31 will still be required to represent him as a member of the unit of employees.  Unfortunately, we should not expect the current majority of the Supreme Court to recognize this duty either when it comes down with its decision in the Janus case.