In Partnership with 74

Divided Supreme Court ends mandatory dues for union members and — in further blow to organized labor — rules that workers must opt in

Carolyn Phenicie | June 27, 2018

Your donation will help us produce journalism like this. Please give today.

Activists rally in front of the U.S. Supreme Court Feb. 26, 2018 in Washington, D.C. (Photo by Alex Wong/Getty Images)

The Supreme Court in a sweeping decision Wednesday upended the way public-sector unions do business, ruling that dissenting employees cannot be compelled to pay any dues, and that union members must affirmatively opt in to membership — rather than requiring dissenters to opt out.

Forcing dissenting employees to pay dues violates First Amendment protections against compelling speech, Justice Samuel A. Alito wrote for the majority in the 5-4 decision that was both highly anticipated and widely expected.

“Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned,” Alito wrote.

A few hours after the decision was announced, news broke that Justice Anthony Kennedy, 81, would retire, giving President Trump another pick that could shift the court’s ideological balance more sharply to the right.

The ruling, in Janus v. AFSCME, overturns a precedent from the 1970s known as Abood which had held that dissenting public-sector workers could be exempted from funding unions’ explicitly political activities, but could be forced to pay so-called “agency fees” that fund contract negotiations and other traditional labor activities.

The court’s four liberal justices dissented in an opinion written by Justice Elena Kagan. She criticized the majority for overruling Abood with “little regard” for the court’s usual deference to precedent, and said the court is inappropriately weighing in on whether agency fees should be required, an issue currently being debated in the states.

“Judicial disruption does not get any greater than what the Court does today,” Kagan wrote.

Plaintiff Mark Janus and others had argued that Abood should be overturned because even traditional labor activities, like contracts and layoff policies, are political when they affect taxpayer dollars and public policy.

Janus, a child support specialist from Illinois, praised the ruling.

After waiting in the courtroom to hear it, he described the decision as “a big sigh of relief, actually, that we now have a finished conclusion to this long road.”

“We’re doing this for worker rights across the country, the 5 million public sector workers that now have the opportunity to decide on their own [whether or not to join a union],” Janus told The 74.

Unions, for their part, slammed the decision as elevating the privilege of conservative donors who have funded Janus and similar lawsuits over the rights of working people.

“Strong unions create strong communities. We will continue fighting, caring, showing up and voting, to make possible what is impossible for individuals acting alone,” American Federation of Teachers President Randi Weingarten said in a statement.

In overturning Abood, the court rejected arguments that it struck a balance between protecting dissenters’ First Amendment rights and maintaining “labor peace” while preventing “free riders” from benefitting from union-negotiated contracts without helping pay for them.

Alito in the majority opinion extensively discusses the First Amendment issue, particularly the issues on which dissenting members may disagree with their unions, including a number of education policies.

Specifically, he lists teacher tenure and transfer policies, merit pay, and evaluations as areas that could be negotiated in collective bargaining that are “of great public importance.”

Critics of how some of these policies play out in the classroom say teachers unions sometimes protect the interests of their adult members over the educational needs of students. There are lawsuits pending in several states arguing that some of these union-negotiated protections, specifically tenure and seniority-based layoffs, directly harm low-income students of color, by keeping poor performing teachers in the classroom, denying students their right to an adequate public education.

The ruling has the potential to greatly diminish the monetary and political influence of unions, a key ally to Democrats.

President Donald Trump noted that fact in a Tweet praising the ruling and calling it a “Big loss for the coffers of the Democrats!”

Teachers unions could be particularly hard-hit, Nat Malkus, deputy director of education policy studies at the conservative American Enterprise Institute, said in a release.

“Losing agency fees won’t kill teachers unions, as the recent teachers’ strikes in non-agency fee states prove, but it could permanently weaken one of the nation’s largest interest groups,” he added.

Alito’s decision goes farther than some had expected, clarifying that dissenting employees cannot be forced to opt out of union membership as they are now, following what those workers say are sometimes overly burdensome requirements for doing so.

“Unless employees clearly and affirmatively consent before any money is taken from them, this [First Amendment] standard cannot be met,” he wrote.

Both Alito and Kagan acknowledged the ruling’s potential to disrupt unions’ usual functions and relationships with employers.

The loss of payments from non-members “may cause unions to experience unpleasant costs in the short term, and may require unions to make adjustments in order to attract and retain members,” Alito wrote.

But he had little patience for those arguments, when compared to what are now illegal forced dues payments.

“We must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment,” he wrote.

Kagan, meanwhile, noted that the decision upsets state law in 20 states, plus the District of Columbia and Puerto Rico, requiring rewrites of those statutes and renegotiation of thousands of contracts.

New York City alone has agency fees in 144 contracts with 97 public-sector unions, she notes.

“Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways,” she warned.

In New York City, teachers sign two cards, one which makes them union members and another that authorizes the city to automatically deduct dues, United Federation of Teachers officials said on a call with reporters Wednesday.

Educators may revoke their membership at any time. New York law allows unions to set the standards for opting out of the automatic dues payments. UFT requires employees to notify the city in writing between June 15 and June 30 if they don’t consent to the automatic deduction and want the part of their dues returned to them that they could claim pre-Janus, the portion that covers political activities, union officials said.

From those agency-only fee-payers, UFT could lose as much as $1.5 million in dues in the coming year, out of its $185 million budget, representatives said. That doesn’t include current members who pay full dues but may choose to stop doing so after the Janus decision.

A number of pending cases challenged the requirement in many states that those who wanted to leave the union explicitly opt out of doing so, rather than mandating that all employees who want to be union members affirmatively join.

One of those, Yohn v. California Teachers Association, challenges California’s rules that required teachers who wanted to only pay agency fees to affirmatively opt out of the union, rather than requiring teachers who want to join the CTA to opt in.

“We had hoped that the court would go beyond the narrow question and address the consent issue that’s implicated in these opt-out rules …There was no better than a 50-50 chance that would happen, and I think that helps move things forward on the ground without a lot of needless litigation,” Terry Pell, president of the Center for Individual Rights, told The 74. The center brought the Yohn case.

Lawyers will ask California for a summary judgment in Yohn’s favor based on the Janus ruling, Pell said.

“There’s really nothing else to litigate,” he added.

This article was published in partnership with The 74.

Read Next