It was a decision not to decide. Still, the American Federation of State, County, and Municipal Employees (AFSCME), the largest federation of public worker unions in the United States, will rightly take it as a “win.” Wins, after all, have been rare for public unions before this Court. The US Supreme Court last week announced that it will not hear a case in which a public employee demands the return of fees he had paid his union under protest.
Unions by law must represent all workers in their bargaining unit, even non-members. So, if a union bargains for and wins a 5% increase in salaries, non-members will get the 5%. This raises a “free rider” problem. Should non-members be required to pay union dues, or can they pocket that 5% increase for free, to to speak, after it was won for them by agents using money paid by their co-workers?
Three years ago, in the Janus decision, the Supreme Court prohibited public employees’ unions from charging so-called “agency fees.” So, yes, a worker can get a free ride, because denying that would limit his free speech rights (by forcing him to fund advocacy.)
This suit, Janus II, was a follow-up, demanding the refund to non-member workers of fees paid even before the Supreme Court announced the Janus I decision: in other words, giving the Janus I decision retroactive effect, and gutting union treasuries.
The Thing to Know:
The courts below have rejected efforts to make Janus I retroactive. The Seventh Circuit, for example, said that unions only have the obligation to “follow what the law is, rather than what the readers of tea leaves predict that it might be in the future.” When defendant unions collected the agency fees in dispute, they followed the law as it then stood. The Supreme Court, even with a 6-3 conservative balance, seems content to let that stand.