The lead plaintiff in the current Supreme Court case Janus v. AFSCME spoke about the case at the Washington Policy Center’s Solutions Summit on Tuesday.

Mark Janus works as a child support specialist for the State of Illinois. Janus first joined the public sector in the 1980s and later left to work for a private company. He returned to state government in 2007 and was surprised to see a deduction on his paycheck to the American Federation of State, County and Municipal Employees (AFSCME) for a fair share or agency fee.

According to AFSCME’s merits brief submitted to the Supreme Court, a fair share fee charges non-union members for “their share of the cost of the collective bargaining process, contract administration and the pursuance of matters affecting wages, hours and conditions of employment subject to the terms and provisions of the parties’ fair share agreement.” These fees do not fund a union’s political advocacy.

The argument for the fair share fees is that it prevents non-union members from benefiting from the union’s representation without paying for those services.

Mark Janus argues that being forced to pay this fee violates his First Amendment right of freedom of speech. He explained that he did not support the union negotiating higher wages and benefits for him that the state could not afford.

“I kept seeing what was happening in Illinois. Illinois is in terrible fiscal shape. We’re losing population, I think it was around 34,000 net loss last year. We have $150 billion pension debt, unfunded liability. We have about a $9 billion backlog of unpaid bills that the state owes money to. And, I just kept seeing the public-sector unions asking for more and more and more…

I’m not anti-union. I believe that for unions in either the private or public sector, if people want to come together to collectively bargain they should have that right. But I also feel that if you do not want to join, if you do not want to be a part of that organization you should also have that right. Unfortunately, in the public sector, in 22 states which includes Illinois, includes Washington, we don’t have that right. We have to pay that fee to keep our jobs and to work for state government.”

Janus also argues that collective bargaining for public employees in inherently political because it involves public dollars. AFSCME disagrees with this argument in its merits brief.

AFSCME argues that fair share fees do not violate the First Amendment under previous Supreme Court ruling Abood v. Detroit Board of Education. In this case, the Supreme Court unanimously agreed that public-sector unions could charge fair share fees for collective bargaining.

In Abood, the Court addressed a government acting as employer of a workforce that democratically elected a union as the exclusive representative to negotiate and administer a collective-bargaining agreement. Under state law, the union had to represent all workers but could charge non-members their fair share of costs associated with “collective bargaining, contract administration, and grievance adjustment.” Though such fees implicate the First Amendment, the Court explained, collection of them is justified by States’ strong interest in promoting labor peace through collective bargaining and avoiding the “free rider” incentive that arises when non-member employees can avoid paying any fees while retaining the benefits of representation by an informed and expert agent. However, the Court held, the government could not, consistent with the First Amendment, compel non-members to pay for union expenditures relating to “political and ideological purposes unrelated to collective bargaining.”

AFSCME argues that if fair share fees are no longer required, union stability would be threatened because employees who benefit from union representation will no longer have to pay for the cost of representation. The union is required to represent and negotiate on behalf of all public service workers, not just union members.

Mark Janus argues that if the Court rules in his favor, unions will have to make their membership more appealing and better respond to members. Janus also says he is more than willing to negotiate his own salary and benefits as a non-union member.

The Supreme Court is expected to issue a ruling sometime in June. The Supreme Court heard a similar case in 2016 in Friedrichs v. California Teachers Association which was unresolved in a 4-4 ruling following Justice Scalia’s death shortly after oral arguments. Assuming the justices rule the same as they did in Friedrichs, Associate Justice Neil Gorsuch will decide the outcome of Janus v. AFSCME.

The ruling will impact public sector employees in 22 states, including Washington. The ruling will not directly impact private sector employees.

Read two opinion pieces on the case, one in support of Janus and one in support of unions, published last fall.

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