In 1977, the U.S. Supreme Court ruled in Abood v. Detroit Board of Education that public-sector unions may be allowed to charge non-members an agency fee, also known as “fair-share.” These fees must be used strictly for the union’s overhead and administrative costs, such as the expenses incurred in negotiating contracts that benefit and apply to all employees, including those who are not dues-paying members of the union. However, the agency fees may not be used for union political activities, such as lobbying and advocacy. If an employee disagrees with the political views of the union representing him/her, then using mandatory agency fees for political purposes is a violation of the First Amendment by forcing the employee to engage in objectionable political speech.
The Court’s decision in Abood has been challenged multiple times since, most recently in 2016 in Friedrichs v. California Teachers Association, No. 14-915. In Friedrichs, a group of California public-school teachers also challenged the constitutionality of fair-share fees on free-speech grounds. But, before the Court could issue a decision, Justice Antonin Scalia died, leaving the court deadlocked 4-4 with the lower court decision upholding fair-share fees remaining in place.
In the most recent case, Janus v. AFSCME Council 31, a public employee, Mark Janus, disputed the practice of charging fees to non-members of the union. Janus claimed that such payments forced non-dues paying employees represented by the union to make political speech, violating the First Amendment’s free speech protections. The Seventh Circuit Court of Appeals affirmed the lower district court ruling against Janus this past March, stating that only the U.S. Supreme Court has the authority overturn Abood. Janus then appealed to the U.S. Supreme Court, and on September 28, the justices agreed to hear this case. The oral argument is likely to take place in early 2018, with a final decision on the constitutionality of public-sector union agency fees to be expected later that summer.
*OSBA wishes to thank Olentangy High School student and OSBA mentee Hayden Toftner for his contributions to this article.