(Updated at 1:05 p.m. ET)
The U.S. Supreme Court Wednesday dealt a blow to public unions' ability to collect fees from nonmembers, ruling the practice violates those workers' free speech rights.
In a 5-4 decision penned by Justice Samuel Alito, the majority said unions couldn't force nonmembers to "subsidize private speech on matters of substantial public concern." The ruling overturned the high court's long-standing precedent that allowed unions to collect these so-called agency fees, which are used to support collective bargaining activities including lobbying, advertising, membership meetings and litigation.
But Alito, Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch said even forcing nonmembers to pay for those activities should be considered compelled speech.
"Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved restrictions on what can be said, rather than laws compelling speech," Alito wrote. "But measures compelling speech are at least as threatening."
In a sharp dissent, Justice Elena Kagan warned that the decision would have "large-scale consequences" and could lead to more members withholding their dues.
"Without a fair share agreement, the class of union nonmembers spirals upward," she wrote. "When the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative—or, in the worst case, to perform them at all."
Healthcare unions reacted angrily to the ruling. "This decision is an attack on registered nurses and their ability to collectively advocate for patients," said David Johnson, national field director for National Nurses United. "It undermines nurses' ability to be effective patients' advocates when corporations are increasingly dominating healthcare and when the voice of the nurse is more important than ever."
Twenty-two states allow unions to collect mandatory fees, known as agency fees, from employees in the bargaining unit to represent them in contract negotiations. Fees to cover a union's political activities already were optional under a previous Supreme Court ruling.
Unions—which represented 7.9 million, or 34.4%, of public employees in 2017 compared with 8.5 million, or 10.7%, of employees in the private sector—are one of the strongest political forces advocating for protecting Medicare, Medicaid and other social programs. Overall, nearly 1.5 million workers in healthcare occupations are represented by unions, according to the U.S. Bureau of Labor Statistics.
The plaintiff in the case, Janus v. AFSCME, Mark Janus, an Illinois child support enforcement specialist, argued that the First Amendment protects his right not to pay a $45 a month fee to the American Federation of State, County and Municipal Employees to represent him. He claimed he disagreed with the union when it was bargaining with Illinois, feeling that the cash-strapped state needed to save money on salaries and health insurance.
In defending the right of unions to collect the fees, the Democratic attorney general of Illinois, Lisa Madigan, argued the only relevant question was whether a restriction on an employee's speech affects the employee's ability "to speak as a citizen on a matter of public concern."
Administrators of public-sector healthcare systems had mixed feelings about the Janus case, and public hospital systems in New York City, Los Angeles and San Francisco filed amicus briefs supporting the union's position. While some public system leaders may welcome seeing unions weakened by loss of fee revenue, others fear that would hurt public health efforts. They know that unions are the strongest advocates for maintaining funding for their agencies.
Experts cautioned that management will need to watch for potential conflict between union members and nonmembers over not paying agency fees.
"Management needs to be on lookout for stress and potential bullying-type activities against people who don't want to pay dues," said Jon Anderson, a partner with Godfrey & Kahn in Madison, Wis., who represents hospitals and public agencies that deal with unions. "There have to be appropriate mechanisms for people to complain and address those added stressors in the workplace."
Anti-union legal experts said public-sector unions now will have to work harder to gain the support of workers whose dues payments they seek.
"The unions will need to focus on offering value to workers so that they have reasons to join the union voluntarily," said Debra La Fetra, a senior attorney with the conservative Pacific Legal Foundation, which filed an amicus brief supporting Janus' position. "But today is a day for celebration—for all individual workers nationwide who retain the fundamental right to be true to their own beliefs and to refrain from subsidizing a powerful interest group that opposes them."
Anderson said employers will be able to use the Janus ruling to weaken or even decertify unions if that's what they want, because they will have increased ability to assess a union's support among workers based on the percentage paying agency fees.
On the other hand, he predicted that unions now will become more aggressive both politically and in their representation of their members, and likely will redouble their efforts to market the benefits of unionization to workers.
The Janus case grows out of many years of efforts by conservative groups funded by the billionaire Koch brothers and others to weaken labor unions through overturning the Supreme Court's 1977 precedent upholding agency fees in Abood v. Detroit Board of Education.
The Janus case was originally brought by Illinois Republican Gov. Bruce Rauner, who has made it a priority to roll back public-sector unions. After a judge removed him from the case for lack of legal standing, he was replaced as plaintiff by Janus.
In the majority opinion, Alito wrote that while mandatory agency fees may have been necessary to protect peaceful relations in the workplace 41 years ago, labor peace now can be ensured through less restrictive means. He added that unions are quite willing to represent non-dues paying members in the 28 states that don't allow mandatory agency fees.
Anderson agreed with the dissenting justices that the ruling substantially weakens the financial ability of unions to represent workers, given that many will opt to get the union's collective bargaining services for free.
Now employers will have to make adjustments in their collective bargaining contract language and payroll processes to ensure that employee payments for union agency fees are no longer automatically deducted from paychecks, he said.
