On June 27, 2018, the U.S. Supreme Court, in Janus v. AFSCME, 2018 U.S. LEXIS 4028, held that arrangements between government employers and unions to collect “agency fees” (also known as “fair share dues”) from bargaining unit employees who do not wish to join the union is unconstitutional under the First Amendment. In reaching this holding, the Janus Court overruled Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977).
In Janus, the Court determined that forcing public employees to subsidize a union even if they choose not to join violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern. In Abood, the main defense of the agency-fee arrangement was that it served the State’s interest in “labor peace.” By use of the term “labor peace,” the Abood Court meant avoidance of the conflict and disruption that it believed would occur if the employees in the bargaining unit were represented by more than one union. However, the Janus Court said that the Abood Court had no evidence to support this contention. On the contrary, the Janus Court examined federal law which allows a union to be voted as the exclusive representative of employees of the federal government, but yet still does not permit agency fees. The Janus Court reasoned that this set up had not caused disruption or chaos in the federal workforce, and there are significantly less restrictive means to achieve “labor peace.”
Additionally, the court looked at another major justification of the Abood Court – the risk of free riders. The basis for this justification was that agency fees were needed to prevent nonmembers from enjoying the benefits of union representation without shouldering the costs. However, the Janus Court dismissed this justification by stating such a risk was not a compelling state interest. The Janus Court examined examples from non-agency fee jurisdictions and found that unions were willing to represent nonmembers in the absence of agency fees, and their duty of fair representation is a necessary concomitant of the authority that a union seeks when it chooses to be the exclusive representative.
The Janus Court concluded that neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, the Janus Court noted that nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. To be effective, the Court held that the waiver must be freely given and shown by “clear and compelling evidence.” Notably, the Janus Court expressly held that “[u]nless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.”
Lessons for Government Employers in Ohio:
1. Ohio is a “fair share” state, meaning that prior to the Janus ruling, public employees could be forced to pay union agency fees as a condition of employment. However, the holding of Janus removes this requirement and is immediately effective. Accordingly, the first thing public employers in Ohio should do following this holding is to identify those employees who have been paying agency fees/fair share fees without evidence of clear and affirmative consent from the respective employees, and the public employer should cease those deductions immediately.
2. Public employers should review whether they already have evidence of clear and affirmative consent from union members for their full union fees to be deducted from their pay. Typically, this would include a written authorization signed individually and voluntarily by each such employee. If there is no such evidence, the public employer should evaluate the best method for soliciting whether each respective employee desires to provide such evidence. Notably, this should be done without violating R.C. 4117.11(A)(2), which makes it an unfair labor practice for a public employer to interfere with the administration of a union.