AFSCME, relying on precedent set by the Court’s 1977 Abood v. Detroit Board of Education decision, which found that a public-sector union may compel non-union members to pay agency or fair share fees, argued that Janus misconstrued the intent behind the First Amendment, as well as how the Supreme Court previously applied it, and the nature and idiosyncrasies of collective bargaining. AFSCME contended that collective bargaining primarily concerns terms and conditions of employment, are non-political in nature, and have nothing to do with lobbying.
Despite the narrow decision by SCOTUS, this was not an entirely unexpected blow to public-sector unions, with over 40 years of precedent extinguished in one fell swoop. Janus follows a similar case in which the Court split 4-to-4 on the issue back in March 2016 in an opinion following the death of Justice Antonin Scalia.
Practically speaking, the outcome of the decision will necessarily have some impact on the revenues of unions that are heavily engaged in public-sector representation. The Court’s ruling in Janus invalidates agency or fair share fees in more than 20 states that have passed such laws. There absolutely will be employees who do not work in a right-to-work state (an employee in a right-to-work state does not have to pay these fees if not a member of the union) who will resign their membership based solely on financial implications and a higher paycheck. The magnitude of this type of defection could possibly determine the fates of some unions, but whether it will be a landslide of members is anyone’s guess.
Too, how it will play out with repercussions under the Davis-Bacon Act is yet to be determined. ACCA will remain diligent and keep our members posted on any developing effects from the Janus decision.