Janus v. AFSCME: Free Speech Wins, Unions Lose

The Supreme Court of the United States today dealt a major blow to public sector employment unions. At issue was whether public sector unions are permitted to withhold fees, without consent, from employees who do not want to join the union. The specific law at issue in the case is an Illinois law that allowed public sector unions to withhold what is called an “agency fee” from nonmember employees. The idea is that where a union has been recognized as the exclusive bargaining unit, it has the responsibility to represent all employees during collective bargaining, whether member or not. Thus, the agency fee, which amounts to a specified percentage of the normal union dues, is justified—or so the argument goes—because the nonmember employee is receiving benefits of representation. The Supreme Court disagreed.

The Court held that the First Amendment’s protection against compelled speech outweighed any interest the state may have in forcing employees to support the views of a union by paying dues. In so doing, the Court overruled a decades-old case that upheld a similar agency fee as the one at issue here.

While the Court’s opinion will no doubt have a profound impact across the country, its direct effects will likely not touch the vast majority of Colorado teachers and local unions. For example, under Colorado law, teachers are not required to join unions, and teachers who don’t join the union are not required to pay “agency fees.” However, there are a handful of districts, including Pueblo D-60, Pueblo D-70, and Alamosa which have collective bargaining agreements that include fees similar to the ones at issue in Janus. And, those agreements are structured such that employees are forced into membership unless they opt out during a small window of time at the beginning of each school year. Even if teachers opt out this year, they are automatically opted back in next year and are required to pay “representation fees” unless they opt out all over again. Colorado Springs D-11 at one time had the same requirement, but several years ago there was a change to the master agreement that allowed a one-time opt out that remained in force. It is likely that today’s decision will make these type of provisions in collective bargaining agreements unconstitutional.

The Court held that “[n]either an agency fee nor any other pay­ment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Rather, to be effec­tive, the waiver must be freely given and shown by ‘clear and compelling’ evidence.” The presumed opt-in to membership in a union likely violates the Court’s holding today.

Only time will tell how the full weight of the Janus case will be felt from state to state. But one thing is clear today: Free speech wins, unions lose.