Unions can use member dues to engage in political activities as well as contract negotiations, but fair share fees only cover the cost of collective bargaining.
Like a bad recurring nightmare, a case that could significantly damage the labor movement's most vibrant segment, public-sector unions, will be heard again at the U.S. Supreme Court this autumn.
Supreme Court accepts new challenge to mandatory...
The Illinois case involves Mark Janus, a state employee who says Illinois law violates his free speech rights by requiring him to pay fees to subsidize AFSCME, which represents tens of thousands of Illinois workers.
In the last five years, the Supreme Court under Chief Justice John Roberts has criticized Abood's reasoning in at least two cases, though it has left the precedent standing.
The Janus case was initially brought to federal court, in 2015, by Illinois' Republican governor, Bruce Rauner.
Scalia has since been replaced by another conservative, Republican President Donald Trump's appointee Neil Gorsuch, who legal experts believe would be sympathetic toward the challenge and likely to rule against the IL law.
While the Janus case involves a different plaintiff from a different state (Illinois), the argument is the same: Collective bargaining by public-sector unions inherently involves political issues that trigger First Amendment rights, just like the overtly political union activities that nonmembers have long had the right to refuse to help pay for.
Half the states, including MI, have enacted right-to-work laws that say employees don't have to join a union or pay agency fees. The same constitutional analysis would seem to apply to both public and private sector unions whenever the government forces anti-union employees to pay union fees. It was filed at the Supreme Court just two months after Gorsuch filled the high court seat that had been vacant since Justice Antonin Scalia's death.
Gettleman dismissed the workers' complaint in 2016, and the Chicago-based 7th U.S. Circuit Court of Appeals upheld his decision in March.
The states compare the requirement of public employees to subsidize union activities to "forced subsidization of a political party".
A loss for unions representing teachers, police, transit workers, firefighters and other government employees would deprive them of millions of dollars annually and diminish their political clout. Twenty-eight states have so-called right-to-work laws under which fees are not required. In the case Abood v. Detroit Board of Education, the high court held that such payments to unions by non-members did not violate the Constitution's First Amendment free-speech guarantee because non-members otherwise would benefit from collective bargaining at no cost. In those states, unions still represent workers but membership rates are lower.
Since Justice Neil Gorsuch joined the court this year, the Janus case presents another chance for the court to consider Abood.