by Ann C. Hodges, Professor of Law, University of Richmond
It is no surprise to observers of labor relations that the Supreme Court is once again considering a petition for certiorari in a case challenging the only reliable source of union funds. Well-funded interest groups have long sought to limit unions’ power by restricting their ability to charge for services they are required by law to provide. The petition currently pending in Janus v. AFSCME rehashes the same arguments rejected by the Supreme Court forty years ago in Abood v. Detroit Board of Education and downplays subsequent legal developments that support reaffirmation of the decision in Abood.
Abood held that unions can charge nonmembers for the costs of collective bargaining and contract administration from which they benefit, even if the nonmembers disagree with some of the unions’ spending. Though such charges may implicate First Amendment interests, any impairment is outweighed by the government’s interests as an employer. Despite the 1977 decision, anti-union interest groups have continued to mount legal challenges. In 2016, in Friedrichs v. California Teachers Association, a case that sought to overturn Abood, the Court deadlocked 4-4 after the death of Justice Scalia. As a result of the tie vote, the decision let stand the Seventh Circuit’s decision rejecting the challenge to union fair share fees based on Abood. That the issue would soon return to the Court was as certain as death and taxes.
In 2015, I authored an ACS Issue Brief on the Friedrichs case highlighting the reasons that the Court should refuse to overturn the longstanding precedent of Abood. Nothing has changed. In a slight shift in strategy, the present petition puts more emphasis on the level of scrutiny that the Court should apply to challenges to mandatory union fees. In this petition, the National Right to Work Legal Defense Foundation, the leading organization opposing fair share fees, argues that Abood should have applied strict scrutiny to the fee requirements. Strict scrutiny, the organization posits, would require invalidation because the governmental interests in stable labor relations and avoiding free riders cannot justify the imposition on employee First Amendment rights.
But the petition virtually ignores the well-settled Pickering balancing test for speech restrictions imposed by government employers on their employees. Since Abood was decided, the Court has applied the test repeatedly to uphold significant employer restrictions on the speech of government employees. Because the government is acting as employer, in the interest of insuring stable labor relations, when it agrees to require employees to pay for the representation the union must provide, the Pickering test applies. And the balance weighs in favor of the government.
The Court could decline to hear the case on jurisdictional grounds as urged by AFSCME. Alternatively, the Court could decide the case is not a good vehicle for deciding the issues or it could decline to hear another case so soon after Friedrichs. More likely, however, is that the Court will grant cert with its new member Justice Gorsuch poised to weigh in. If the Court takes the case, it should reaffirm Abood for all of the reasons argued in the Friedrichs issue brief.
But the forces opposed to unions will not give up. The Right to Work Foundation and similar groups will be back before the Court with another case, regardless of the outcome of this one. If public sector fees are deemed unconstitutional, the organizations will attack private sector fees. In addition, they are successfully pushing for more state right to work laws, which achieve the same result, not only in the public sector but also the private sector.
Unions are fighting battles for their survival on multiple fronts, with fewer and fewer resources. Nevertheless, the fight for employee voice and economic justice in the workplace will continue so long as there are employers and employees, whether led by unions in their current form or not.