On June 27, the U.S. Supreme Court announced its decision in Janus v. AFSCME Council 31, Case No.16-1466. By a 5-4 vote, in an opinion written by Justice Samuel Alito, the Court ruled that public employees, including teachers, cannot be required to pay union dues, even if they are benefitting from the services provided by the union. The Court held that “fair-share fees,” which were collected from government workers who were represented by a union but chose not to join, can no longer be compelled to be paid. This case is widely seen as delivering a blow to public sector unions and undoubtedly will have far-reaching implications going forward.
In reaching this decision, the Court specifically reversed Abood v. Detroit Bd. Of Ed., 431 U.S. 209, issued more than 40 years ago, which permitted fair share fees to be charged and collected in 22 states authorizing agency fees, including Ohio. The Supreme Court stated that extracting agency fees from non-consenting public sector employees violates the First Amendment and therefore Abood’s holding to the contrary is no longer valid law. The Court examined the justifications for agency fees that supported the prior rule in Abood, and found that under the strict scrutiny standard applicable to addressing First Amendment concerns, those justifications are no longer valid. The Court ruled that going forward, when money is taken from non- consenting employees the First Amendment is violated, unless the employee affirmatively consents to pay. The Court remanded the case to the lower courts for further proceedings to enforce the new decision.
A dissenting opinion, written by Justice Elena Kagan on behalf of four justices, expressed strong disagreement with the reversal of the Abood decision and the majority’s analysis that First Amendment principles are violated when public-sector employees are compelled to pay fair share dues. Justice Kagan stated the decision will have the effect of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” She argued that the Abood precedent had struck the appropriate balance for public-sector unions, and that the majority decision will have “large-scale consequences” for public-sector unions.
Going forward, the Janus decision will likely impact union membership and revenues for public-sector unions nationwide. Commentators are already predicting that this will lead to less power for the unions, who will hire fewer representatives, take fewer cases to arbitration, or will result lower wages being negotiated. Other commentators have predicted that unions will have to work harder to attract membership that becomes more involved in decision making, negotiations, and supporting public-sector union activities, and that more strikes and job actions may result.
In Ohio, Revised Code Section 4117.09(C) allows collective bargaining agreements to include provisions for non-members of the exclusive union representative to pay the employee organization a fair share fee. Because of Janus, this statute will become unconstitutional and unenforceable. Public sector employers and unions will face numerous issues regarding implementation and application of the removal of the agency fee requirement, including the impact on current collective bargaining agreements and possible changes that will be needed.