On Monday, Feb. 26, the U.S. Supreme Court heard oral arguments in Janus v. AFCSME, Council 31 regarding the constitutionality of requiring nonmember bargaining unit employees to pay “fair share” fees. This marks the third time in recent years the court has considered this issue. Most recently, the court was deadlocked on the issue shortly after the Feb. 2016 death of Justice Scalia.
This case asks the court to overturn its 1977 decision in Abood v. Detroit Bd. of Edn., where it found that although it would violate the First Amendment to charge nonmembers for lobbying and other political activities, nonmembers could be forced to pay fees (“fair share” fees) to cover the union’s costs in negotiating bargaining unit contracts that benefit both members and nonmembers.
During the oral arguments, Justice Elena Kagan focused on the widespread impact that overturning Abood would have on contracts impacting as many as 10 million employees across the country. U.S. Solicitor General Noel Francisco appeared on behalf of the United States in support of Janus and assured Kagan that the impact would be minimal because most agreements that include fair share fees were negotiated in reliance on Abood, and any disruption only would last until the next round of negotiations on those agreements. Justice Ginsburg voiced concerns that overturning Abood would take away resources from public-sector unions and, in turn, reduce collective bargaining efficiency. Justice Kennedy focused on the fair share fees’ relationship to unions’ political influence.
During the nearly hour-long oral arguments, none of the eight justices involved in the 2016 decisions seemed to have changed their opinions on the issue. It is thought that Justice Gorsuch, who remained silent during oral arguments, will be the deciding vote on this issue, but we will have to wait until the court’s final ruling sometime in June. In the meantime, OSBA will continue to provide updates on any developments in this case.