Supreme Court to Hear Arguments on Fair Share Fees

by William W. Bowser

On Monday, February 26th, the U.S. Supreme Court will hear oral arguments inSupreme Court Janus v. AFSCME, Council 31, a case that could have a substantial impact on Delaware’s public-sector employers and employees. The Court is being asked to decide whether a public-sector employee who refuses to join a union can be required to pay so-called fair share fees to the union.

Delaware embraces fair share fees

A fair share fee, sometimes called an “agency” or “service” fee, is assessed on employees who refuse to become full members of a union that has organized a workforce. Under Delaware and federal law, the union becomes the “exclusive representative” of all employees in the bargaining unit, including employees who refuse to join the union. The union negotiates the wages and benefits of all employees and represents all employees in the grievance and arbitration process. Fair share fees equal the portion of full union dues devoted to the costs of collective bargaining and contract administration.

Currently, Delaware law fully embraces public-sector unions’ right to collect fair share fees. Indeed, the Delaware Public Employment Relations Board has held that a fair share fee may be collected even if an employee refuses to execute an authorization to deduct the fee. Employees who fail to pay fair share fees can be terminated.

Looming case isn’t the first

The constitutionality of Delaware’s fair share laws was upheld by the Delaware Chancery Court in Alvini v. Colonial School District. The Court relied on the U.S. Supreme Court’s 1977 opinion in Abood v. Detroit Board of Education. In that case, the Supreme Court acknowledged that mandated fair share fees affected nonmembers’ First Amendment right to freedom of association. It ruled, however, that the fees’ impact was outweighed by the “labor peace” that collective bargaining brought to the workplace and the need to discourage “free riders” who would receive the benefits of unions’ efforts without having to pay for them.

In Janus v. AFSCME, Council 31, the Supreme Court is being asked to overturn its decision in Abood. Most observers are confident the Court will do just that because it faced the exact same issue in Friedrichs v. California Teachers Association in 2016. While that case was being considered by the Court, Justice Antonin Scalia died. The Court split 4-4, and Abood lived on.

Scalia has now been replaced by Justice Neil Gorsuch, another conservative judge who is expected to deliver the critical fifth vote to overturn Abood. Barring unexpected delays, a decision is expected as early as this June.

Bottom line

Delaware’s public-sector employers should expect several changes if Janus strikes down fair share fees. First, the Delaware law mandating such fees over objections of nonmembers will be unconstitutional.

Second, the number of nonmembers and fair share objectors should rise. At this time, there is little real economic incentive to non-membership since fair share fees can be taken over employees’ objections. If fees can be taken only with the consent of employees and employees can eliminate the cost of union dues, more employees will surely object to fair share fees.

Third, the American Federation of State, County and Municipal Employees, the Delaware State Education Association, and other public-sector unions will see less revenue. Less revenue may mean fewer union employees, fewer services provided to employees, and less political influence.