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Janus v/ AFSCME, Co. # 31 – A Brave New World for Connecticut’s Public-Sector Labor Unions?

Zachary D. Schurin
CABE Journal
May 2018

This article originally appeared in the May issue of CABE Journal.

On February 26, 2018, the United States Supreme Court heard oral argument in a case captioned Janus v. American Federation of State, County and Municipal Employees (“AFSCME”), Council #31. The Janus case is, in the words of The Washington Post, “[t]he most important labor case of the 21st century.” At issue is the future of so-called “agency fee” or “agency shop” arrangements for public-sector labor unions – the law that allows unions to charge objecting bargaining-unit members collective bargaining fees even if they refuse to become members of the union. 

So what is Janus all about? Well, while the case is correctly described as a labor law case, it actually is also a First Amendment case. The plaintiff, Mark Janus, claims he is being compelled against his will to fund union activities that he objects to on First Amendment grounds, while AFSCME argues that agency shop provisions are the well-established law of the land and that the Supreme Court should not overturn its own precedent. 

By way of background, Mr. Janus, is employed as a child-care support specialist by the State of Illinois’ Department of Healthcare and Family Services. He is a member of a 35,000-person state-employee bargaining-unit represented by AFSCME Co. #31. Under Illinois’ law, Janus and his fellow bargaining-unit members are required to either become members of AFSCME #31 and pay union dues, or pay an alternative “agency” or “fair share” fee that is the equivalent of each bargaining-unit members’ proportionate share of the cost of representing them in collective bargaining, contract administration and grievance adjustment services. Mr. Janus, even though he refuses to become a member of the union, is still required to pay $45 a month to AFSCME #31 as an agency fee.   

Mr. Janus’ argument before the Supreme Court is essentially that collective bargaining with a government employer is a form of political speech that is no different than any other political speech. For instance, during the last round of negotiations with the State of Illinois AFSCME objected to merit pay proposals from the State even though some of its bargaining-unit members had a different view. 

AFSCME’s counter-argument emphasizes the fact that public-sector employees routinely give up some measure of their First Amendment rights because of their employment. As Supreme Court Justice Oliver Wendell Holmes once said, a public employee “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

ASFCME also argues that the “agency fee” or “agency shop” concept is established Supreme Court precedent that should not be easily overturned. In 1977, in a case captioned Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the U.S. Supreme Court ruled that agency shop provisions that mandate that public-sector employees pay a fee for their proportionate share of union collective bargaining, contract administration and grievance adjustment costs are constitutional so long as objecting employees are not required to pay for a union’s political activities (i.e. lobbying the legislature, campaign contributions, etc.). In this respect, the Supreme Court’s decision in Abood tried to strike a balance between the First Amendment rights of government employees, and the countervailing interests of public-sector unions that would be faced with a “free rider” problem if objecting employees could opt-out of the union but still get the collective bargaining benefits -- such as higher wages, better insurance, and better working conditions -- that the union would be required to negotiate on behalf of all members of the bargaining-unit. 

Illinois, Connecticut and twenty other states have state laws that either directly mandate agency shop provisions or allow such provisions – sometimes called “union security clauses” -- in collective bargaining agreements. The rest of the states are so-called “right-to-work” states in which workers cannot be forced to join a union or pay an agency fee as a condition of employment. Right-to-work states, which are generally in the South and Midwest, tend to have much weaker unions. 

A New Post-Janus World? 

So why does the Janus case matter for Connecticut boards of education? Well, the simple answer is that the Supreme Court’s decision in Janus could have enormous ripple effects for the unions that Connecticut boards of education interact with every day. 

If, as many legal scholars predict, the Supreme Court overturns Abood and makes the agency shop arrangement unconstitutional, Connecticut’s unions will have to contend with potentially huge losses in funding. Employees who would rather save money on dues then support their union will be able to simply opt-out of dues. Will large numbers of employees take this step? If so, what does that mean for the unions that rely on dues to operate? 

During the last session of the General Assembly, legislation was proposed that would have required boards of education, municipalities and other public agency employers to negotiate “lump sum” service fee payments with unions instead of deducting dues and service fees from individual bargaining-unit members paychecks. The legislation did not pass, but it would not be surprising to see the same concept or another attempted legislative fix come before the General Assembly during this session. The Supreme Court’s decision in Janus is expected in late June or early July, so the legislature’s time to pass such legislation may be running out before we the Supreme Court ushers in a major change to agency fees.