Friday, February 23, 2018

Fair Share: Is It Fair And, If Not, What Do You Do About It?

On Monday, February 26, the United States Supreme Court will hear oral argument in the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31Janus is an Illinois case challenging the constitutionality of “fair share fees”-fees authorized by a collective bargaining agreement that are designed to require employees who are not union members to pay their “fair share” of the union’s costs in providing collective bargaining and contract administration services to employees in an appropriate bargaining unit.  Originally upheld by the Supreme Court in the 1977 case of Abood v. Detroit Board of Education, the Supreme Court has agreed to consider whether or not the Abood case should be overruled.

The Court has heard arguments on the issues raised in Janus on two prior occasions.  In the first case, the Court avoided the question by ruling that the employees in question-home health aides-were not actually public employees.  In the second case, decided following the death of Justice Scalia, the Court reached a 4-4 deadlock, thus leaving in place a lower court decision that relied on Abood.  The Court now has its full complement of justices, however, and the prevailing opinion is that the outcome will depend on the vote of the Court’s newest justice, Justice Gorsuch.

The plaintiff in Janus, supported by the Trump Administration, contends that fair share fees are a form of governmentally-coerced speech and that they, therefore, violate the First Amendment.  The defendant union, along with State Attorney General Madigan and the Director of the Illinois Department of Central Management Services, argue that Abood was correctly decided and should not be disturbed.

There is a distinct possibility that Janus will overrule Abood.  If that happens, public employers with collective bargaining agreements providing for fair share fees will face some practical concerns.  Typically, a collective bargaining agreement that provides for the charging and collection of fair share fees will also contain a “savings clause” providing that, in the event that a provision of the collective bargaining agreement is declared illegal or unenforceable, the parties must meet and bargain over a replacement provision.  Even in the absence of a savings clause, there is a good chance that there would be an effects bargaining obligation requiring the employer to sit down with the union and bargain over the effects of the elimination of the fair share provision.

Whether the bargaining is styled as contractually-mandated bargaining or statutorily-mandated effects bargaining, the employer will need to be prepared to face creative solutions to the fair share problem advanced by unions.