Janus v. AFSCME could end public sector "agency shop" agreements


Public sector unions ought to be trembling today.

Abood v. Detroit Board of Education, 431 U. S. 209 (1977) – which upheld fair share clauses in the public sector – is being teed up to be overruled. I don't know anyone who thinks Abood will survive.

The US Supreme Court granted certiorari today in Janus v. AFSCME Council 31 [Order] [Briefs] raising this simple question:

Whether Abood v. Detroit Board of Education should be overruled and public-sector "agency shop" arrangements invalidated under the First Amendment.

We thought we would get this issue resolved in Friedrichs v. California Teachers Association but Justice Scalia's death left us with an evenly divided Court [Opinion].

The Supreme Court has already opined that Abood's analysis is "questionable." Harris v. Quinn (US Supreme Court 06/30/2014).Technically, Harris v. Quinn did not overrule Abood. Yet the 5-4 majority laid out a set of reasons why it believes Abood's analysis is "questionable."

Here is the majority's anti-Abood manifesto:

*  Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson's first amendment analysis was "thin."

*  Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.

The Abood Court fundamentally misunderstood Hanson's narrow holding.

*  Abood failed to appreciate the difference between public sector union speech and private sector union speech.

*  Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.

*  Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable

*  Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.

The Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers.

[For a list of current employment law cases, see Supreme Court Watch.]