Supreme Court rules against forced union fees for government workers

In a major legal and political defeat for big labor, the Supreme Court ruled 5-4 Wednesday that state government workers – whether they join the union or not – cannot be forced to pay so-called "fair share" fees to support collective bargaining and other union activities.

The conservative majority said a union's contract negotiations over pay and benefits were inextricably linked with its broader political activities, and concluded workers had a limited constitutional right not to underwrite such "speech."

“This procedure violates the First Amendment and cannot continue,” Justice Samuel Alito wrote in the majority opinion. “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.”

In a blistering dissent, Justice Elena Kagan wrote, "The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions."

Reading from the bench, she added: "There's no sugarcoating today's opinion."

At the center of the debate is a 1977 Supreme Court opinion known as Abood v. Detroit Board of Education that says while non-members of public sector unions cannot be required to pay fees for a union's political activities, they can be required to pay so-called "fair share" fees pertaining to issues such as employee grievances, physical safety and training.

In recent years, so-called Right to Work groups as well as some conservatives on the court have pushed for it to be overturned. Wednesday, nearly half of all states have laws on the books that allow broad fair share fees for public employees.

The case was brought by Mark Janus, an Illinois public sector employee, who challenged the fees. He said that because he is a government employee, issues germane to collective bargaining are inherently political. He argued that the First Amendment protected him from having to support such political expression.

Janus has been represented in the challenge by groups such as the National Right to Work Legal Defense Foundation and the Liberty Justice Center.

The American Federation of State, County and Municipal Employees, which represents public sector employees, has described the challenge as a threat to American workers.

The public sector unions argue that they are required by law to represent all employees regardless of if they are members and that no one is required to join the union.

If non-members don't have any obligation to pay fair share fees for the collective bargaining obligations, they would become free riders, benefiting from the representation without sharing the costs, the unions say. The coffers of public sector unions would also suffer if non-members were able to get services for free.

Alito noted, and dismissed, the impact to union funds.

"We recognize that the loss of payments from non-members may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members," Alito wrote. "But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years."

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