By Aileen O’Driscoll, Esq.
More than ever, our members must unite and protect each other. Your membership matters and the latest news from the U.S. Supreme Court shows why.
The Supreme Court is scheduled to hear and decide Janus v. AFSCME before next summer. At issue is whether a state can allow a public-sector employer to require all members of a collective bargaining unit to pay their fair share of costs associated with the collective bargaining process. These include the negotiation and enforcement of collective bargaining agreements.
Fair-share fees—also referred to as agency fees—have been a fundamental part of the public-sector collective bargaining arena for decades. The Supreme Court established fair-share fees in Abood v. Detroit Board of Education, decided in 1977. In that case, the plaintiff challenged a Michigan public-sector union’s imposition of full dues on an employee, alleging that charging him for the costs incurred by the union for political and lobbying activity violated his First Amendment right to free speech.
The court established that a public-sector union, such as NJEA, could not compel employees who did not agree with the union’s political and lobbying activities to pay for that part of the union’s work. However, the union could collect dues from nonmembers for the cost of activities related to collective bargaining and contract enforcement. The court reasoned that where a union serves as the exclusive representative, and acts in the best interest of all employees, the collection of the fair share of these costs from nonmembers was constitutional.
Since Abood, a public school employee in New Jersey who opts to be a nonmember of NJEA receives the benefit of the local association’s work negotiating and enforcing the district’s collective bargaining agreement. The nonmember pays his or her fair share of dues, which excludes the cost of political/lobbying activity. The nonmember has no voting rights in the union, cannot participate in the association’s governance and is not eligible for many of the expansive benefits made available to members, such as professional development and legal representation.
Challenges to Abood
The Abood rule is sound and has been reaffirmed in hundreds of cases since 1977, with courts nationally consistently holding that the fair-share fee is constitutional. However, in 2012, the Supreme Court began to question this principle. In a seminal 2014 case, Harris v. Quinn, the Supreme Court, which addressed fair-share fees for homecare workers, who are nontraditional public sector workers, made clear that it was growing more skeptical of the Abood standard.
Most recently, in Friedrichs v. California Teachers Association, the Supreme Court heard oral arguments stemming from claims challenging Abood on First Amendment grounds. The case was argued before the Supreme Court but because of Supreme Court Justice Antonin Scalia’s unexpected passing, the court, left with eight justices, issued a tied decision. The First Amendment question at issue remained unanswered. At the time that the Freidrichs case was argued, the U.S. government and the state of California supported the fair-share fee law, as did many other states and friends of the court, including the National Education Association.
New administration, full court
With a new administration in the White House, and conservative Justice Neil Gorsuch having been appointed to fill the vacancy left by Scalia, the issue is before the court again in the Janus case. Mark Janus, an Illinois public-sector employee, is challenging the constitutionality of the fees he pays to the majority representative. He is represented by the Right to Work Foundation, a conservative organization funded by billionaire corporate interests.
Having been defeated in federal court at the trial and appellate levels, the Right to Work Foundation filed a petition with the Supreme Court that was accepted for consideration by the court on Sept. 28. An adverse decision in Janus will upend the fair-share rule in New Jersey and in every other fair-share state because nonmembers will become “free riders.” This means that nonmembers will no longer have to pay their fair share, but they will reap the benefits that the majority representative—your local association—negotiates and enforces. A decision is expected before the end of this school year.
NJEA’s membership is one of the largest and strongest in the country. A continued strong membership will send a clear message to the anti-worker forces that NJEA will not be intimidated.
Let’s keep it that way.
Aileen O’Driscoll is the managing attorney in NJEA’s legal services division.
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