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SCOTUS on Unions and Protecting First Amendment Rights  
By Allison Franz on September 13, 2018

The Supreme Court has dealt a major blow to public sector unions in the name of protecting Americans’ First Amendment rights.  In its ruling in Janus v. AFSCME on June 27, 2018, the Court held that public sector workers cannot be forced to pay dues to unions if they do not join one.  The Court argues that forcing individuals to subsidize unions that may endorse positions with which the workers themselves disagree constitutes a violation of the workers’ First Amendment rights, essentially placing the burden of keeping unions afloat onto nonmember workers. The immediate effect of this decision is that nonmember workers can now choose whether to voluntarily contribute to a union.

The Court’s decision in Janus overturns precedent set forth four decades ago in Abood v. Detroit Board of Education.  In Abood, the Court held that non-members of public sector unions can be required to pay “fair share” fees to unions, which pertain to issues such as employee grievances, physical safety, and training.  Writing for the conservative majority in Janus, Justice Samuel Alito argued that requiring public employees who choose not to join a union to pay dues supporting collective bargaining and other union activities violated Americans’ “fundamental free speech rights.”  Union nonmembers, the majority argued, should not be compelled to “subsidize private speech with which they may not agree.”

The unions argue that the charging of “fair share” fees mitigates the risk of “free riders”—because unions are required by law to represent both members and nonmembers, the Court’s decision allows union nonmembers to enjoy the benefits of union representation without sharing the cost.  However, the majority in Janus claims that, citing Knox v. Service Employees, the free-rider argument is not sufficient to overcome the First Amendment objection.

In the short term, the ruling has the potential to hurt labor unions financially.  Unions rely on nonmember dues to “stay afloat,” and if the automatic deduction of dues from the paychecks of nonmember workers is ended, unions will be forced to convince member workers to contribute dues voluntarily.  However, in the long term, this temporary financial struggle may serve to make union activity more powerful by forcing stronger internal organization within unions.  By turning the power to decide whether to pay union dues back to individual workers, the Supreme Court’s ruling places the fate of labor unions squarely on the nonmember workers’ shoulders.

If you or someone you know has a question about rights as a nonunion member, please contact Steven Cohen at 716.636.7600.

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