10 June 2017

Threats to agency fee a.k.a. Fair Share

On June 6, 2017, in a continuing attempt to undermine unions, the National Right to Work Committee filed an appeal with the Supreme Court seeking to have agency fee ruled unconstitutional for public-sector employees in a case called Janus v. AFSCME Council 31. We explain below the status of this case and give a summary of what chapters can do, with the help of the AAUP, to prepare for any decision.
Agency fee has been deemed constitutional since the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education. Over the last forty years, the courts have repeatedly found that the agency fee system adequately balances the interests of the employees and the state in an efficient labor relations system and the First Amendment interests of union members and nonmembers. However, in a 2014 decision, Harris v. Quinn, Justice Samuel Alito questioned whether Abood was good law and virtually invited challenges to the constitutionality of agency fee. In this opinion, Alito claimed that all agency fee arrangements in the public sector could violate the First Amendment as they compel nonmembers to pay for activities that may address matters of public concern and are therefore “political.” Anti-union groups took up Justice Alito’s invitation and have pushed a number of cases through the courts.
Last year, the Supreme Court took up such a challenge in Friedrichs v. Cal. Teachers Ass'n, 194 L. Ed. 2d 255, 136 S. Ct. 1083, 84 U.S.L.W. 4159 (U.S. 2016). Many organizations filed briefs on both sides, and the AAUP filed an amicus brief in support of the constitutionality of agency fees. While initially a majority of the Court seemed poised to find agency fee unconstitutional, the death of Justice Scalia left the Court equally divided, with four justices likely in favor of finding agency fee constitutional and four opposed. The Court issued a summary decision that did not address the substantive question. Unfortunately, recently appointed Justice Neil Gorsuch may side with the four conservative justices, and thus the Supreme Court could revisit the issue and could find agency fee unconstitutional, at least in the public sector.
There are a number of pending cases that could serve as the vehicle for the Court to address the issue. One case that may be such a vehicle is Janus v. AFSCME Council 31, a challenge to agency fee for Illinois public sector employees. On March 21, 2017, the Seventh Circuit Court of Appeals ruled in favor of the union based on Abood, noting that, “neither the district court nor this court can overrule Abood, and it is Abood that stands in the way of [Appellants] claim.” Janus v. AFSCME Council 31, 851 F.3d 746 (7th Cir. 2017).
On June 6, 2017, the plaintiffs in Janus filed a petition for a writ of certiorari with the United States Supreme Court. Once a petition is filed, the Court must decide whether to grant the petition and thereby accept the case. If the petition is not granted, the lower court decision is final. If the petition is granted, then the Court sets a briefing and argument schedule. For cases on a normal schedule, the Court can take from several months to several years to issue a decision. In the Janus case, a decision on whether or not to accept the case will likely be made in the fall of 2017. In the event that the Supreme Court accepts Janus, or another case addressing this issue, the AAUP anticipates joining or filing an amicus brief in support of the current precedent that agency shop/fair share fees are constitutional.
If, as expected, the Supreme Court accepts the case, any decision holding agency fee unconstitutional would probably be issued by the time the Supreme Court term ends in late June 2018. If a decision is issued holding agency fees unconstitutional, it would likely be effective the day it is issued. There would probably be no waiting period or grandfathering of existing contracts, as there often is when there are legislative changes. Thus, agency fees could not be collected or retained as of the day the decision is issued, even if a collective bargaining agreement or state law is in effect.
This legal threat to union rights is part of a broader effort to weaken unions as effective representatives for working people. For an AAUP chapter, these efforts amount to a direct attack on the democratically elected voice of the faculty. As the leadership and staff of your union, you can defend your organization and the higher education labor movement by committing to constant organizing.
The AAUP is ready to stand with you. For more resources on organizing, visit the AAUP-CBC website or contact organizing@aaup.org.
Chapters should also prepare for the budgetary and other impacts of any decision. The primary defense against the elimination of agency fee is to ensure that the chapter has a high percentage of members. Generally unions have found that when agency fee is eliminated they often do not lose members, but primarily lose the agency fees they collect from nonmembers. Thus, maximizing the percentage of eligible employees who are members of the chapter is essential. Chapters should also carefully review the chapter budget and should be prepared for the possibility of losing the revenue received from agency fee payers.
At the AAUP/AAUP-CBC Summer Institute in Cincinnati July 27–30 we will present a session on Threats to Union Agency Fees and Other Challenges: How to Survive and Thrive. This session will provide an overview of potential threats, when they might be realized, and the legal and fiduciary obligations of union leaders to anticipate and address their impacts. We will also provide practical guidance on how chapters can build effective, member-led unions in the aftermath of these legal challenges. The Summer Institute will also feature multiple workshops designed to help you organize new members, engage existing members, and run effective campaigns. Learn more about the Summer Institute or register at https://www.aaup.org/2017-SI.
We will continue to provide information to chapters as the case proceeds.
Aaron Nisenson
AAUP Senior Counsel
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