States Are Split On Whether Public Sector Unions Should Be Able To Require Nonmembers To Pay Fees

The Supreme Court is scheduled to hear arguments in the case on Feb. 26.

Twenty states and Washington, DC, have sided with public sector unions in a Supreme Court case that union leaders say would upend governmental collective bargaining agreements. Challengers say it is a key First Amendment issue that must be addressed.

The issue is the question of whether public sector unions can assess so-called "agency fees" against nonunion employees. The fees, which were found to be constitutional by the Supreme Court in 1977, are paid by nonmembers to support public sector unions' collective bargaining work.

Nonunion members and opponents of public sector unions have criticized the fees and the 1977 case, Abood v. Detroit Board of Education, broadly in recent years.

In a 2014 decision, the Supreme Court noted that "[t]he Abood Court’s analysis is questionable on several grounds," but did not need to resolve the question. Although the justices heard a case to resolve the question in January 2016, Friedrichs v. California Teachers Association, and appeared likely to overrule Abood and end agency fees in public sector unions, Justice Antonin Scalia's unexpected death the next month left the court split 4–4 — a ruling that kept the agency fees permitted for the time being.

Now, however, with Justice Neil Gorsuch having filled Scalia's seat on the court, the justices again agreed to take up the issue — and likely overrule Abood.

The overwhelmingly Democratic group of attorneys general, led by New York Attorney General Eric Schneiderman, remain engaged on the issue, though. They filed their brief supporting the public sector unions on Friday evening.

The states "have a substantial interest in avoiding the vast disruption in state and local labor relations that would occur if the Court were now to overrule Abood’s approval of public sector collective bargaining arrangements utilizing agency-fee rules," lawyers for the states argue.

In early December, a different set of 20 states — a Republican group led by Michigan Attorney General Bill Schuette — filed their brief backing Mark Janus, the Illinois state employee challenging the agency-fees policy.

"Twice in the past five years this Court has questioned its holding in Abood v. Detroit Board of Education," the Michigan-led states wrote of the 1977 case. These states assert that they "have a vital interest in protecting the First Amendment rights of public employees, and in the fiscal health of state and local governments."

The New York-led states counter, though, that "Abood is permissive, not mandatory. Voters and elected officials in each State—including the States that support [Janus]—remain free to decide what policies should apply in public-sector labor relations for their communities."

The Supreme Court is scheduled to hear arguments in the case on Feb. 26.

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