In a 5–4 decision, the high court declared unconstitutional the agency or fair-share fees that nonmembers pay to offset the union’s cost of negotiating contracts that cover all workers, regardless of whether they are union members.
“The Janus decision reflects years of scheming by forces desperate to destroy workers’ rights and to undermine public education,” said UFT President Michael Mulgrew. “These people think that their money, power and privilege give them the right to rig the system in their favor. But our union will remain strong, and we will not be silenced. Everything we have been able to accomplish for our members and our students has come from our ability to work together, and we will continue to fight for the rights of workers, their families and for public education.”
Justice Samuel Alito, the author of the decision, had brazenly signaled in a 2012 opinion that the 41-year-old Abood v. Detroit Board of Education ruling that upheld union collection of fair share fees could be overturned with the right challenge. Mark Janus, an Illinois state worker, brought the complaint with the assistance of anti-union billionaires [see Labor Spotlight below].
It was the second time in nearly two years that the high court considered the constitutionality of fair-share fees. The death of Justice Antonin Scalia in 2016 led to a 4–4 deadlock on a predecessor case, Friedrichs v. California Teachers Association.
Alito tipped his hand to the political worldview underpinning the court’s decision when he referred to the rise of public sector union membership since the Abood decision and the “mounting costs of public-employee wages, benefits, and pensions” and “unsustainable collective bargaining agreements.”
Alito turned a blind eye to the teacher walkouts in right-to-work states this year. “Whatever may have been the case 41 years ago when Abood was decided, it is thus now undeniable that ‘labor peace’ can readily be achieved through less restrictive means than the assessment of agency fees,” he wrote.
Justice Elena Kagan, in a scathing dissent joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, said the court had succeeded in its six-year campaign to reverse a longstanding precedent on ideological grounds.
“The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision,” she wrote. “It has overruled Abood because it wanted to. Because, that is, it wanted to pick the winning side in what should be — and until now, has been — an energetic policy debate.”
She noted the wide ramifications of the ruling on public sector unions, the workers they represent and workplace governance.
“There is no sugarcoating today’s opinion,” she wrote. “The majority overthrows a decision entrenched in this nation’s law — and in its economic life — for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”
Kagan said the ruling puts public sector unions in an untenable predicament: bound to represent all employees in a given bargaining unit but without the adequate funding to do so. “The various tasks involved in representing employees cost money; if the union doesn’t have enough, it can’t be an effective employee representative and bargaining partner,” she wrote.