Constitutionality of Public Union “Agency Fees” Set for Decision

For the second time in less than three years, the U.S. Supreme Court is considering whether requiring public sector employees who are non-paid members of the bargaining unit to pay an “agency fee” to subsidize union activities is unconstitutional.

The Illinois Public Labor Relations Act implements National Labor Relations Act principles at the state level. The Illinois Act authorizes “agency fee” arrangements in which public sector, non-paid members of the bargaining unit are required to “pay their proportionate share of the costs” to the union for their bargaining unit, for collective bargaining-related activities. In 1977, the Supreme Court held such statutes constitutional in Abood v. Detroit Board of Education.

In 2016, a full, 9-member Supreme Court considered in Friedrichs v. California Teachers Association whether to overturn Abood. The petitioners in that case argued that requiring non-member employees to pay an agency fee to a union effectively required those employees to support a private entity that advocated positions to the government contrary to the employees’ privately held beliefs. Justice Antonin Scalia died shortly after oral argument in Friedrichs, and the court split 4-4. The split decision affirmed the lower court’s affirmation of constitutionality by default.

Since Friedrichs, Justice Neil Gorsuch has joined the bench. Now, a full 9-member court is considering the case of Janus v. AFSCME, which represents that it “presents the same question presented in Friedrichs: should Abood be overruled and public-sector agency fee arrangements declared unconstitutional under the First Amendment?” In support of their position, petitioners assert, “If the First Amendment prohibits anything, it prohibits the government from dictating who speaks for citizens in their relations with the government.”

The Supreme Court heard oral arguments in Janus on Monday, February 26, 2018. During argument, the 8 justices who split in Friedrichs held to their positions. Chief Justice Roberts and Justice Alito skeptically questioned petitioner’s counsel, seeking admissions that agency fees support public-employee union lobbying and political advocacy efforts.

Justices Ruth Bader Ginsburg and Sonya Sotomayor asserted that the petitioners sought to do away with public unions by eliminating a substantial funding source. And Justice Elena Kagan stressed the “reliance interests” of Abood, which has stood for over 40 years. She said, “I don’t think we have ever overruled a case where reliance interest are remotely as strong as they are here,” noting that if petitioners succeeded, “thousands” of contracts would be invalidated, affecting “maybe up to over 10 million workers.”

Justice Stephen Breyer cited to the former Solicitor General under President Kennedy, saying, “I once heard Archie Cox…say the greatest instrument for labor peace and prosperity from the years 1945 to 1970 was grievance arbitration in the unions.” Justice Breyer then said eliminating agency fees would cut a leg of support for that system.

Justice Gorsuch, however, did not ask any questions during oral argument. His position on the matter, which will break the 4-4 tie on whether agency fees are constitutional, is thus not publicly known.

We will report on Supreme Court’s ultimate decision in Janus when it is released.


This case law update was written by James P. Heelan, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.






Posted in Case Law Update


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