The SCOTUS’ Decision on Janus and What’s Next

Terrance B. McGann, McGann, Ketterman & Rioux

The Supreme Court will soon decide whether a person’s First Amendment right to freedom of speech is denied when public sector collective bargaining agreement requires him to pay “fair share” fees to a labor organization that is required by law to represent him.

Mark Janus is challenging an Illinois law that permits unions and public sector employers to agree that employees who choose not to become union members must still be required to pay “fair share fees” or “agency fees” as a condition of their employment. These fair share fees, which represent a portion of the established union dues paid by members, are based upon the union’s cost to represent the bargaining unit in contract negotiations, contract administration and grievances with their employer. Fair share fees exclude certain administrative costs and costs related to the union’s political activities. Janus, who is represented by the Liberty Justice Center, argues that all representational duties performed by the union on behalf of public sector employees are political in nature and therefore being forced to pay for such activities is a violation of his First Amendment right to free speech.

Janus is asking the Supreme Court to overturn its 1977 decision which upheld a labor organization’s right to require public employees who benefit from union representation, to have to pay for the cost of those services. The Court’s 1977 decision recognized that, unlike general service providers in a commercial setting, unions who are recognized as the exclusive representative of a group of employees are mandated by law to represent all employees in the group regardless of their status as members of the union. Unlike general service providers who are free to deny their services to customers who choose not to pay, unions by law do not have this choice. It is because of this requirement that the Court in 1977 upheld the right of the union and public employer to enter into an agreement requiring public employees to pay for the services they receive even though those employees may choose not to be members of the union.

Janus would have the union expend time and resources to negotiate higher wages, and benefits, ensure better working conditions and represent him when his employer violates the terms of the collective bargaining agreement and not pay for the costs of those services. When our citizens elect their government officials they pay taxes so that those officials may pay the expenses associated with operating the government. Similarly, when a group of employees elect to be represented by a labor organization, the employees are required to pay for the expenses associated with the costs of representation. It is precisely for this reason that Mark Janus and others who challenge the imposition of fair share fee payments are referred to as “free riders”- attempting to get something for nothing.

The Court heard oral argument on February 26, 2018 and is expected to decide the case in June. Most prognosticators have predicted a 5-4 decision down party lines with the newly appointed conservative justice, Neil Gorsuch, to render the deciding vote. While the Janus decision is limited to the context of public sector labor relations, its future implications are not known and many believe that workers can expect that the same rationale may be used in the future to challenge the imposition of fair share fees in the private sector.