In recent decades unions have faced several challenges. First, union membership continues to decline. As of 2017, 14.8 million workers in America (10.7% of the workforce) were represented by a union, which is down from 17.7 million in 1983 (20.1% of the workforce).1 Second, more than half the states have passed “right-to-work” legislation, which prohibits employees from being required to join a union or pay an agency fee as a condition of employment.2 With Kentucky and Missouri enacting legislation in 2017, 28 states are now “right-to-work” states.
In the other 22 states, collective bargaining agreements commonly contain a “union security” clause that requires employees in the bargaining unit to join the union or pay an “agency fee.” Last week, however, in Janus v. AFSCME, Council 31, the United States Supreme Court dealt another significant blow to unions who represent employees in the public sector. The Supreme Court overturned its 1977 decision in Abood v. Detroit Bd. of Ed. and held that a public sector employer and a union can no longer require employees to join a union or pay agency fees as a condition of employment.
The Petitioner in the case, Mark Janus, is employed by the Illinois Department of Healthcare and Family Services as a child support specialist. In the record before the Court, Mr. Janus had stated he did not share the union’s view on various issues and believed that the union’s “behavior in bargaining does not appreciate the current fiscal crisis in Illinois and does not reflect his best interests or the interests of Illinois citizens.” Although Mr. Janus had chosen not to join the union, he was compelled to pay an agency fee, which he alleged violated his First Amendment rights. A majority of the Supreme Court agreed.
In writing for the majority, Justice Alito wrote: “[The] freedom of speech includes both the right to speak freely and the right to refrain from speaking at all.” In his opinion, Justice Alito quoted Thomas Jefferson: “To compel a man to furnish contributions of money for the propagation of opinions which he believes and abhor[s] is sinful and tyrannical.” Ultimately, the Court held that “the First Amendment does not permit the government to compel a person to pay for another person’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.”
After finding that public employees had a constitutional right to refrain from financially supporting a union, the Court held there was not any compelling state interest to justify infringing on that right. The Court considered two possible interests: (1) maintaining labor peace, and (2) preventing “free riders from enjoying the benefits of a union’s efforts without paying for them.” While the Court observed that labor peace is a worthy interest of the government, the Court’s majority did not believe that “labor peace” would be jeopardized by allowing employees to refrain from joining a union or paying an agency fee. The Court also found that avoiding “free riders”3 was not a sufficiently compelling interest to allow infringement of the First Amendment’s protections.
While unions have been bracing for this decision, how they will react is yet to be seen. Some unions have begun campaigns to highlight the benefits of union membership. Unions are also considering, as suggested in the Court’s decision, offering certain services to nonmembers for a fee (e.g., representing nonmembers at grievance hearings).
So how may employers be affected by the Court’s decision in Janus? First, public sector employers should review their collective bargaining agreements and determine whether they contain language that needs to be modified or eliminated in light of the Court’s decision. Second, employers should be prepared to respond to inquiries from employees regarding the Court’s decision. Employers must make sure they do not engage in an unlawful labor practice by encouraging employees to withdraw their membership in or support of the union. Employers should train their supervisors to respond to inquiring employees that the decision of whether to be a member or pay an agency fee is a decision for the employee to make. Third, more nonmember employees may be representing themselves at grievance hearings. If so, employers will have to be prepared to deal with employees who are not familiar with the process or how the collective bargaining agreement has been interpreted and administered. Finally, employers may also find that unions have fewer resources to administer their agreements, which may make unions less available to employers to resolve issues.
Only time will tell how significantly the Janus decision will actually impact labor relations for employers. If you have any questions about the Janus decision, or any other aspects of labor law, please contact one of the members of LeClairRyan’s Labor & Employment team.
1In the public sector, 34% of the workforce is represented by unions, while only 6.5% of employees in the private sector are represented.
2An agency fee is the portion of a union’s dues that reflect the cost of representing the bargaining unit (e.g., negotiating a collective bargaining agreement, administering the agreement, representing employees at grievance hearings/arbitrations, etc.). The agency fee in Janus was 78.06% of the full union dues.
3/Rather then being a “free rider”, Mr. Janus argued that he was “a person shanghaied for an unwanted voyage.”