The recent Supreme Court decision in Janus v. AFSCME struck down a government union’s right to collect agency fees (usually three quarters of the normal union dues) from government employees who do not belong to the union.  The Janus holding could foreshadow a similar shift in a private union’s ability to collect agency fees from non-members in the private sector.

Private sector employees have a right not to belong to a union.  In Communication Workers v. Beck, the Supreme Court held that the union may not require members to pay for the union’s political activities.  Unions may charge objectors an agency fee, which is slightly less than the regular dues. In Beck, the union contract required employees who do not become union members to pay agency fees in an amount equal to the dues paid by union members. The non-member employees challenged the union, arguing that the union’s expenditure of their fees on activities such as political activities violated the union’s duty of fair representation and the First Amendment.  The court found that the National Labor Relation Act authorizes unions to collect only those fees and dues necessary to perform the duties relating to labor-management issues; it could not collect fees to finance political activities.  The court did not determine whether the First Amendment was violated.

In Janus, the Supreme Court addressed the payment of agency fees in the public sector context.  A majority of the court held that agency fees violate “the free speech rights of non-members by compelling them to subsidize private speech on matters of substantial public concern.”  This specifically refers to financing union activities.  Therefore, public sector employees are no longer required to pay an agency fee because it violates their First Amendment rights.

There are several interesting arguments that could be made with respect applying Janus to the private sector.  While it may seem obvious that all U.S. citizens have rights under the First Amendment, what is not widely known is that the deprivation of a citizen’s First Amendment rights can only be addressed if the violation is done by state action.  There is a line of cases holding that union rules or contracts requiring payment of union dues do not constitute state action, and thus cannot be addressed by the First Amendment.  However, in Connecticut, we have a statute, Section 31-51q, which protects employees in their exercise of rights under the First Amendment.  This could be grounds for an employee to allege, like in Janus, that their payment of an agency fee to a private union violates their First Amendment rights as provided in the cause of action in Section 31-51q. Continue Reading Landmark Decision Could Impact Private Sector Unions

On February 26, 2018, the Supreme Court of the United States will hear arguments in Janus v. AFSCME, Council 31, a case which should be watched by public employers and union officials as the fate of agency fees hangs in the balance. Agency fees are paid by non-union members to compensate the union for its services such as negotiating contracts and grievance representation. In this case, an employee claimed the union’s requirement that he pay an agency fee was unconstitutional as it violated his rights of freedom of speech because he disagreed with the union’s political message.

Agency fees have been found to be constitutional since the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education.  The Supreme Court took up the issue of agency fees again in 2016 in Friedrichs v. California Teachers Association, which, with the passing of Justice Scalia, resulted in a 4-4 tie.  This time, the Court will have a new justice in Neil Gorsuch, who was appointed by President Trump in 2017.

The ramifications of a decision in favor of Janus has unions nervous since a decision prohibiting their ability to collect agency fees from persons who do not join the union would affect their ability to maintain staff and officers, as well as negatively impact their lobbying efforts.

We will be sure to keep you posted on this case and others.