The United States Supreme Court hears oral argument today in a case that could reshape finances for public employee unions in 22 states, including California, where those unions are able to collect “agency fees” from non-member public employees to cover the costs of negotiating collective bargaining agreements and representation services.
Two years ago, the Court heard similar issues in Friedrichs v. California Teacher’s Association 136 S. Ct. 1083 (2016), however, the decision stalled 4-4 at the Court after Justice Scalia’s death prior to the decision, leaving the lower court decision undisturbed. The new case, Janus v. American Federation is widely expected to result in a finding that such agency fee arrangements violate free association and free expression protections of the 1st Amendment. Full information about the Janus case can be found here. The case is on appeal from a Seventh Circuit decision, Janus v. American Federation.
Janus argues that requiring the agency fee payment represents a forced support of the political speech unions make during negotiations due to the impacts of those negotiations upon the public service, and that public sector negotiations are fundamentally political speech. The unions, on the other hand, argue that a host of decisions have held that public employees are more greatly restricted in their rights to 1st amendment speech when they are acting as employees of their agencies and the mere fact that negotiations may impact the public service does not result in union negotiations becoming political speech.
Agency fee arrangements have been approved by the Supreme Court since their 1977 decision in Abood v. Detroit Board of Education 431 U.S. 209 (1977).
If struck down, unions would likely no longer be able to require payment of fees from non-members to support collective bargaining and representation services they must provide. The looming spectre of a decision along these lines has been linked to legislative efforts in California in 2017 that protect union organizing efforts, inoculating them to some degree by allowing for a method to encourage full union membership by public employees. Some examples of those new laws are contained in AB 119, which required public agencies to negotiate providing contact information for bargaining unit employees and to allow for union access to those public employees during new employee orientation when hired by their public agencies.