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Union Dues and the First Amendment: What the Janus Ruling Means for You

By: Jim Budzik

June 27, 2018

Cleveland, OH

Ohio’s public sector landscape will likely be changing dramatically, thanks to yesterday’s 5-4 U.S. Supreme Court vote in Janus v. American Federation of State, County, and Municipal Employees Council 31.  The Supreme Court overturned a 1977 decision that allowed “fair share,” or “agency,” fees to be collected from all public employees, regardless of whether they had joined a union. The rationale was that all employees benefitted from non-political activities, such as a union’s collective bargaining agreement or contract administration, even if certain employees were not members.

This ruling now means that non-union members in approximately two dozen states – Ohio being one of them – cannot be forced to pay fees to unions that represent public employees. Until yesterday, a public employer whose employees were represented by a union could require any employee to pay fees to the union where the collective bargaining agreement authorized such deductions.

The case was initially brought by Mark Janus, an Illinois public employee – and non-union member – who sued the American Federation of State, County and Municipal Employees Council 31 over the collection of fair share fees. Janus’s position was that the Illinois statute that allowed for the collection of such fees violated his right to free speech and free association under the U.S. Constitution’s First Amendment.

In siding with Janus, however, the Court stated that while the ruling “may cause unions to experience unpleasant transition costs in the short term,” that had to be weighed against all of the funds taken from non-union employees and transferred to public sector unions. This ruling now deprives unions of a key revenue stream, and could affect their ability both to attract new members and spend in political races.

Unions, which won both in district court and in the Seventh Circuit before the case was appealed to the Supreme Court, had argued in favor of keeping the fair share fees requirement for the following reasons:

  • Illinois law regarding collective bargaining includes non-political issues, such as wages, hours, vacations, parking; therefore, political lobbying is not implicated.
  • Agency fees are imperative, because ruling in favor of Janus would significantly increase the number of free riders and it would be impossible to adequately fund the activities needed to fully represent constituents and all bargaining unit employees. Inasmuch as unions have to represent all bargaining unit members, union dues paying members should not have to subsidize non-paying members.

Specifically in Ohio, the Court’s ruling means that Ohio House Bill 53, introduced in late 2017, now will change parts of Ohio’s collective bargaining law. The law currently allows a contract to contain a fair share fee provision. That provision is now invalid. House Bill 53 may also eliminate the “free rider” argument, because the bill would require employee organizations to only represent employees who are dues-paying members of the exclusive representative. Thus, only public employees in an appropriate bargaining unit who are members of the union would be eligible to collectively bargain with the Ohio public employer.

Finally, collective bargaining agreements would govern the wages and working conditions of only the employees who are members of the union. This could result in employees in the same job classification receiving different compensation and benefits, because union employees would be subject to the contract, while non-union employees would be subject to wages and working conditions set by the public employer.

The Janus ruling certainly stands to result in a measurable impact for a number of states, including the prohibition of fair share fees in public sector contracts across the United States.

In other words, stay tuned for further developments in the area.

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