President Donald Trump’s administration has filed a brief urging the U.S. Supreme Court to overrule its 1977 precedent that authorizes public-employee labor groups, including the teachers’ unions, to collect service fees from workers in the bargaining unit who refuse to join.
The position is a reversal of that taken by President Barack Obama’s administration in two recent cases in which the justices considered overruling Abood v. Detroit Board of Education, the 40-year-old decision that has been targeted by union opponents and defended by teachers’ unions for years.
U.S. Solicitor General Noel J. Francisco filed the friend-of-the-court brief on Dec. 6 in Janus v. American Federation of State, County, and Municipal Employees Council 31 (Case No. 16-1466). The brief supports Mark Janus, a child-support specialist with the Illinois state government who objects to the service fees, or “agency fees,” deducted from his paycheck each month by AFSCME.
“The court should overrule Abood and hold that the First Amendment prohibits compulsory agency fees in public employment,” Francisco writes.
The brief notes that the solicitor general’s office recently took the opposite position in two cases that addressed the question, Harris v. Quinn in 2014 and Friedrichs v. California Teachers Association in 2016.
But after the justices granted review of Janus’ case in September, “the government reconsidered the question and reached the opposite conclusion,” Francisco said.
“The government’s previous briefs gave insufficient weight to the First Amendment interest of public employees in declining to fund speech on contested matters of public policy,” the solicitor general says in the brief.
Francisco points out that federal employees have a right to join a union or not, and to designate their union as the exclusive bargaining representative.
“Federal-employee unions, however, may not charge agency fees to employees who choose not to join the union,” Francisco says. “Despite the absence of agency fees, nearly a million federal employees—more than 27 percent of the federal workforce—are union members.”
Francisco also makes the claim that “Abood has not created significant reliance interests” for public-sector unions, which “have been on notice that Abood is in serious jeopardy” based on recent cases such as Harris. The unions can be expected to take a sharply different view of that assertion when they file their briefs in the case in January.
In Harris, the Supreme Court stopped short of overruling Abood in a case holding that home-health care aides could not be required to pay agency fees to their union. In Friedrichs, which involved agency fees paid by California teachers, the court appeared poised to overrule Abood.
But after the case was argued, Justice Antonin Scalia died, and the remaining justices deadlocked on the case, which preserved Abood for the time being.
A version of this news article first appeared in The School Law Blog.