By: Amanda Nudelman
Volume IX – Issue II – Spring 2024
I. Introduction and Background
In 2018, Mark Janus was a child support worker at the Illinois Department of Healthcare and Family Services, which oversees child support cases in the state. Janus’ duties included ensuring that court orders given by his office were being followed. [1] As a public-sector worker, Janus’ collective bargaining unit was represented by the AFSCME (American Federation of State, County, and Municipal Employees) public sector union. [2] A union is an organization of workers that seeks to advance their wages, benefits, and working conditions. [3] To do this, labor unions engage in collective bargaining — a process by which union representatives negotiate contracts with an employer on behalf of their employees. The collective bargaining process requires unions to represent all employees, regardless of their union membership status, in negotiations for wages, benefits, and other terms of employment. Although Janus did not join AFSCME because he opposed the union’s political views and its collective bargaining strategies, Illinois law required him to pay a $45 monthly fee to the union. [4]
Multiple other states require public-sector employees who elect not to join the union that represents them through collective bargaining to still pay the monthly agency fees to the union. The American Bar Association defines an agency fee as the “...percentage of total union dues paid by an employee covered by a collective bargaining agreement but who chooses not to join the union as a member.” [5] State laws stipulate that agency fees may be used solely for collective bargaining rather than for political advocacy purposes of the union.
Illinois law designates a union as the exclusive representative of all union and non-union employees in a workplace if the majority of all employees vote to be represented by such union, thus effectively barring individual employees from negotiating their own employment terms. [6] Illinois is also one of 23 states allowing unions to impose agency fees on nonmembers such as Janus. The other states implement “Right to Work” policies, which stipulate that employees who are not members of a union are not required to pay any union fees. [7] The designation of unions as exclusive representatives of union and nonunion employees combined with the right of public-sector unions to charge mandatory agency fees led Janus to assert that agency fees promote “coerced political speech” and are therefore unconstitutional because they violate the First Amendment. [8] The crucial component of the definition of agency fees, which became a point of contention in the 2018 Supreme Court case Janus v. AFSCME Council 31, is whether the unions that collect agency fees from nonmembers are inherently political and are thus using nonmember funds for political purposes. [9]
The Supreme Court in Janus ruled, in a 5-4 decision, that public-sector unions violate the First Amendment when they force nonmembers to pay agency fees. This decision overturned an over-40-year-old Supreme Court precedent established in the 1977 case Abood v. Detroit Board of Education, which held that requiring nonmembers to fund a union’s political activity violates the First Amendment, but mandating the payment of agency fees for nonmembers to cover a public-sector union’s collective bargaining fees is constitutional. Following the Janus decision, the COVID-19 pandemic has emboldened labor unions to organize for better compensation and working conditions. [10] According to data from the Cornell University School of Industrial and Labor Relations, 2023 saw a 141% increase in workers involved in work stoppages (from 224,000 to 539,000). High-profile strikes including the SAG-AFTRA Strike and the UAW Stand-Up strike have bolstered public attention regarding labor movements and increased the number of workers involved in initiatives to improve labor conditions. [11] During a time of heightened labor tensions and increased scrutiny regarding the relationship between the labor movement, the government, and employers, it is critical to revisit Janus in the context of 2024 labor relations and evaluate the perceived conflict between agency fees and First Amendment rights. Although labor action remains high, Janus may especially stifle public-sector unions’ ability to improve working conditions, making it crucial to predict future labor shifts based on this landmark decision. Additionally, cases such as Janus are important to examine because government agencies such as the National Labor Relations Board (“NLRB”) often politicize labor law based on the ideologies of its members, making nonpartisan labor-protective jurisprudence important. The criticism of the Janus decision and its immediate and expected impacts on unions and future jurisprudence demonstrates that agency fees in the public sector are essential to protecting the stability of not only the domestic industrial relations system but also fundamental jurisprudence related to employment negotiations.
II. Abood v. Detroit Board of Education (1977)
Shedding light on the longstanding labor precedent that the Supreme Court overturned when ruling in favor of Janus provides additional context regarding the tension between First Amendment rights and public-sector agency fees. In Abood, the Supreme Court ruled that a public-sector union is legally allowed to impose agency fees on nonmembers because all employees benefit from collective bargaining. [12] The Court stipulated that the collection of these fees is legitimate “insofar as the service charge finance[s] expenditures by the Union for…collective bargaining, contract administration, and grievance adjustment.” [13] Collective bargaining, the Court argued, is not inherently political in the public sector because public-sector employers are not motivated solely by profit in the way that private-sector employers may be — a public employer will not necessarily have to disagree with rising labor costs, whereas in a private company, increasing labor costs would require large-scale price increases. [14] In establishing its reasoning for allowing unions to collect fees from nonmembers to fund collective bargaining costs, the Supreme Court cited two justifications: “labor peace” and free riders.
i. “Labor Peace”
The Court first addressed the rationale for designating unions as the exclusive bargaining representatives within organizations: to prevent employers and employees from facing inter-union rivalries and multiple bargaining agreements that would likely undermine the underlying purpose of collective bargaining. If a union is the sole representative, then an employer and that union can reach an agreement that will not subsequently be subject to scrutiny as a result of a contract with a different union. [15] In his 1977 opinion, Justice Potter Stewart explained that employees may disagree with a union’s ideology or even the concept of collective bargaining in general. Still, the potential interference with an employee’s First Amendment rights is comparatively less important than ensuring the stability of the agency shop system for public-sector unions in the context of preventing conflict within national labor relations — hence, the idea of safeguarding “labor peace.”
i. Free Riders
As the only representative for workers negotiating with employers, unions, according to the Supreme Court in Abood, are responsible for protecting the stability of national labor relations. Negotiating collective agreements, representing employee interests, and processing grievances require significant time and capital, often including additional fees paid to attorneys, arbitrators, and researchers. For this reason, Justice Stewart concludes that public-sector unions may fairly impose an agency fee on non-member employees because they benefit from the union’s bargaining, thus removing incentives for all employees to become free riders — workers who do not contribute to a union but receive bargaining benefits. [16] Granting unions the option to charge agency fees ensures that unions have sufficient funds to adequately represent the interests of labor in public-sector negotiations. With limited funding, unions may not be able to negotiate favorable terms for all of the employees they represent through collective bargaining because employers with access to greater financial resources will have more leverage.
III. Janus v. AFSCME (2018)
In a 5-4 decision delivered by Justice Samuel Alito in 2018, the Supreme Court overruled Abood, arguing that the Illinois statute requiring nonconsenting public employees to pay agency fees violates the First Amendment. Justice Alito’s reasoning addresses the Abood precedent as Alito argues that agency fees are not required to mitigate both the labor peace and free-riding issues introduced in Abood’s opinion. Alito also rejected novel arguments regarding the necessity to sufficiently fund unions to support collective bargaining and increase workplace efficiency, stating that a union can be effective without the use of agency fees. [17] The majority’s main principle was that “Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned.” [18] The concept of forced affirmative speech under the First Amendment was crucial to the Court’s decision in Janus, with the majority holding that such interference with the Constitution with only a negligible impact on labor relations should make forced agency fees unconstitutional. [19]
Justice Kagan’s dissent, joined by Justices Sotomayor, Ginsburg, and Breyer, argues that Janus upsets the power balance within public sector labor relations and will have large-scale national implications because 20 states have passed legislation conforming to the Abood decision. Analyzing Justice Kagan’s dissent and examining the extent to which Janus can and will have significant negative consequences for labor relations will provide a better understanding of the necessity of compulsory agency fees in the public sector. The dissenting opinion emphasizes that “no part of that fair-share payment could go to any of the union’s political or ideological activities.” [20] This notion demonstrates that agency fees intend to safeguard employees’ collective bargaining rights by providing unions with the necessary resources to protect labor interests. Although an employee such as Janus may disagree with the political views of their bargaining unit, the negotiation of benefits by such a union is not inherently political.
According to Justice Kagan, overturning Abood would lead to diminished financial support for public-sector unions and the complication of both government and union strategies. Since a union has exclusive representative status and works to represent all workers fairly and equally, many workers — even those who support their union — may withhold dues for financial reasons, knowing that they will nonetheless benefit from the union’s bargaining efforts. Employees, therefore, should be compelled to fund workplace protections through agency fees by incurring pre-determined expenses in exchange for the benefit of bargaining representation.
IV. Janus in 2024: Predicted Impact
Despite seemingly negligible impacts on public sector union membership in the immediate aftermath of Janus, the future consequences triggered by this ruling appear to be far more dire for domestic labor power. Labor relations experts note a few predicted impacts of the Janus decision, including the following:
Employees who oppose the political views of their representative union will surely opt out of paying agency fees. Those who are indifferent to union membership, however, will likely be swayed not to pay agency fees rather than truly examining how their union benefits them through collective bargaining and paying a fair share for these services. [21]
Employees have commenced litigation against public-sector unions to recoup previously collected agency fees. These actions have largely proven to be unsuccessful but have caused unions to incur significant legal costs that could have been allocated to advocacy for worker benefits. [22]
The system of exclusive representation upon which the United States union system is based may be at risk as a result of Janus, with the ruling giving “union opponents an opening to argue that exclusive representation violates employees’ right to freedom of association by forcing them to be represented by a union they do not desire.” [23]
Courts may attempt to extend First Amendment protections relating to compelled speech to other types of employment and labor negotiations unrelated to unions or collective bargaining. [24]
V. Janus and Future First Amendment Complications
The Janus holding may allow courts in the future to extend protections against compelled speech to all employment and labor-based negotiations. [25] Justice Alito’s opinion implied that public sector union speech regarding labor issues is inherently politically charged and thus in potential need of control — extrapolating this argument to other types of public employee speech would cause “the mass of public employees’ complaints (about pay and benefits and workplace policy and such) [to] become ‘federal constitutional issue[s].’ And contrary to decades worth of precedent, government employers would then have far less control over their workforces than private employers do.” [26] Janus may prove to be a slippery slope for government involvement in public-sector labor issues ranging far beyond collective bargaining, in which employees may take issue with the stance of any majority within their organization. Any organization requiring monetary contribution that simultaneously participates in political activity may be at risk due to Janus. [27]
VI. Conclusion: Janus’ Impact on Public Sector Unionism and the Future of Labor Relations
As a result of the Janus ruling, the future of national labor relations is in a precarious state. [28] Since the ruling, unions have developed new strategies to grow membership. Still, worker resistance has escalated as the forces battling union power have only been strengthened because of the Supreme Court’s decision. Janus targeted a stronghold of the labor movement, with one-third of all unionized workers in the United States working in the public sector. [29] From 2018 to 2019, however, the national decline in public sector union membership was only 0.3 percent, or approximately 100,000 members. [30]
Perhaps Janus’ short-term impact on public-sector union membership may not be as significant as predicted because unions have been preparing to bolster their internal relations due to court decisions undermining their agenda. AFSCME, for example, implemented the “AFSCME Strong” program to boost members’ political engagement and communications and implemented new union organizing technology. [31] A decline in a stable collective bargaining structure due to a lack of requisite funding to balance power between workers and employers may likely compel workers to avail themselves of more disruptive tactics to gain a more influential voice in the workplace. [32] Increased labor activity, such as strikes in 2023 and 2024, has demonstrated that this prediction is likely accurate, although not exclusively in the public sector, with many private sector unionized workers also choosing strikes as a conflict resolution tactic.
Jurisprudence is especially important in defining the scope of contemporary labor regulations due to the politicized nature of the National Labor Relations Board (“NLRB”). The decisions of the board are highly dependent on the political views of its members, who are appointed by the President, causing inconsistencies in rulemaking that are crucial to labor based on partisan politics. [33] Additionally, the NLRB does not protect public-sector unions or collective bargaining, placing these labor regulations under the scope of state and federal law. In the context of a highly politicized NLRB, decisions such as Janus are crucial for maintaining the balance of power between workers and employers and in setting a precedent for both the public and private sectors that unions who engage in collective bargaining for all employees deserve to be adequately protected and funded in the realm of partisan employee divides.
Endnotes
[1] “5 things to know about Illinois state government employee Mark Janus — and his Supreme Court victory.” 2018. Chicago Tribune. https://www.chicagotribune.com/2018/06/27/5-things-to-know-about-illinois-state-government-employee-mark-janus-and-his-supreme-court-victory/.
[2] Freeman, Thomas J., Aaron McKain, Amy J. Parrish, and Christopher Chochon. 2023. “The Roberts Court and Compulsory Collective Bargaining: Reading the Tea Leaves after Janus.” The Georgetown Journal of Law & Public Policy Vol. 21 (1): 188-219.
[3] “Labor union Definition & Meaning.” n.d. Merriam-Webster. https://www.merriam-webster.com/dictionary/labor%20union.
[4] Edwards, Chris. 2018. “Purging Unions from the Public Sector | Cato at Liberty Blog.” Cato Institute. https://www.cato.org/blog/purging-unions-public-sector.
[5] Artz, Michael. 2023. “The Impact of Janus on the Labor Movement, Five Years Later.” American Bar Association. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/labor-and-employment-rights/impact-of-janus-on-the-labor-movement/.
[6] Freeman, et. al. “The Roberts Court…”
[7] Edwards, “Purging Unions…”
[8] Freeman, et. al. “The Roberts Court…”
[9] Janus v. Afscme, Council 31, 138 S. Ct. 2448 (2018).
[10] Cortes, Gabriel. 2023. “Labor unions are pushing hard for double-digit raises and better hours. Many are winning.” CNBC. https://www.cnbc.com/2023/08/27/labor-unions-winning-better-pay-hours.html.
[11] “Labor Action Tracker 2023 | The ILR School.” 2023. The ILR School. https://www.ilr.cornell.edu/faculty-and-research/labor-action-tracker/annual-report-2023.
[12] “Janus v. American Federation of State, County, and Municipal Employees, Council 31." Oyez. https://www.oyez.org/cases/2017/16-1466.
[13] Abood v. Detroit Bd. of Educ, 431 U.S. 209 (1977).
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] “Janus…,” Oyez.
[18] Janus v. Afscme, Council 31, 138 S. Ct. 2448 (2018).
[19] Ibid.
[20] Ibid.
[21] Gonyea, Don. 2018. “Labor Clout Takes A Hit In Supreme Court Ruling On Dues.” NPR. https://www.npr.org/2018/06/30/624513403/labor-clout-takes-a-hit-in-supreme-court-ruling-on-dues.
[22] Hodges, Aaron C. “The U.S. Labor Relations System after Janus v. AFSCME: an Early Assessment.” Employee Responsibilities and Rights Journal 33, no. 1 (2021): 51. https://doi.org/10.1007/s10672-020-09362-y.
[23] Ibid, 53.
[24] Freeman, et. al. “The Roberts Court…,” 202.
[25] Ibid.
[26] Janus v. Afscme, Council 31, 138 S. Ct. 2448 (2018).
[27] Freeman, et. al. “The Roberts Court…,” 214.
[28] Hodges, “U.S. Labor Relations System After Janus…,” 51.
[29] Gonyea, “Labor Clout…”
[30] Artz, “The Impact of Janus…”
[31] Artz, “The Impact of Janus…”
[32] Ibid.
[33] “Politicized NLRB Failing to Protect Working People.” 2019. AFL-CIO. https://aflcio.org/press/releases/politicized-nlrb-failing-protect-working-people.