Supreme Court With Gorsuch on Board Will Rehear Union Fees Issue

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Hassan A. Kanu

The U.S. Supreme Court will rehear the issue of whether nonunion workers in the public sector can be required to pay a fee to a union for its costs in bargaining over their employment terms.

The mandatory fees have been allowed for four decades. The case pits unions, worker advocates, and Democrats against GOP lawmakers, organizations that characterize union power as coercive, and many in the employer community ( Janus v. AFSCME Council 31, U.S., No. 16-1466, cert granted 9/28/17 ).

A clear ruling from the high court has the potential to seriously disrupt the underlying model for unions representing public workers. Some observers have speculated that a ruling in favor of employees represented by the National Right to Work Legal Defense Foundation would be a death blow to public sector unions, which are already slashing budgets and looking for ways to bolster declining membership numbers. Union membership in the public sector has generally been much higher than in private industry.

“This is epic on both sides and everybody knows it,” Richard Epstein, a law professor at New York University, told Bloomberg BNA.

The court heard a case on the same issue last year, but split 4-4 following the death of Justice Antonin Scalia. Justice Neil Gorsuch’s confirmation to the high court is expected to provide a swing vote to ban the fees, according to many labor law practitioners and observers.

“We’re obviously very pleased with the news,” Patrick Semmens, vice president for public information at the National Right to Work Foundation, told Bloomberg BNA shortly after the high court granted certiorari in the case.

“This is an issue we’ve been working on for decades, so getting back to the Supreme Court is something we’re very pleased about,” he said. “We hope the fact they took the case means we might get a ruling striking down forced union dues for public employees by June.”

The NRTW Foundation filed the original case on the issue some 40 years ago (Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977)). The group’s mission “is to eliminate coercive union power and compulsory unionism abuses,” according to its website.

Unions Must Represent Nonmembers Too

Public employee unions are obligated to represent an entire unit of similarly situated workers, including nonmembers. “Fair share fees” are generally limited to the union’s costs of bargaining for the collective employment contract, with members paying greater monthly “dues.”

Public unions and worker advocates characterize challenges to fair-share fees as attacks on working people’s ability to act collectively. Employer representatives and conservative lawmakers have said that the fees are an infringement on the speech rights of workers who don’t want to associate with a union and the political positions unions often take.

“Right-to-work” laws often rescind the fair-share fee requirement. At least 28 states have passed such laws, in most cases with the backing of the NRTW foundation.

Sen. Elizabeth Warren (D-Mass.) recently introduced legislation to abolish right-to-work nationally. Now, the high court will also weigh in on the issue after granting certiorari to this petition.

Unions Protest Court’s Reconsideration of Precedent

The union party to the case, the American Federation of State, County and Municipal Employee, made a statement joined by the three largest public sector unions in the U.S. The organizations called the lawsuit a political and well-funded effort to take away the rights of public workers.

“When working people are able to join strong unions, they have the strength in numbers they need to fight for the freedoms they deserve, like access to quality health care, retirement security and time off work to care for a loved one,” Lee Saunders, president of AFSCME said.

The “billionaire CEOs and corporate interests” behind the case “simply do not believe that working people deserve the same freedoms they have: to negotiate a fair return on their work.”

The merits of the case and the four-decade-long precedent are on their side, the unions said.

A date for the court to hear oral arguments in the case hasn’t yet been set.

To contact the reporter on this story: Hassan A. Kanu in Washington at

To contact the editor responsible for this story: Chris Opfer at

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law