Washington — The U.S. Supreme Court said Thursday it would hear another case challenging a longstanding precedent about union fees out of Detroit involving public sector workers.
The high court heard a similar case last term challenging compulsory union fees in the public sector, but the justices deadlocked, 4-4, after the death of Justice Antonin Scalia.
An Illinois state employee, Mark Janus, asked the justices to take up the issue again. He wants the court to overturn a 1977 ruling in a Detroit case that said public employees who do not belong to a union can be required to pay an “agency” or “fair-share” fee to compensate the union for costs to negotiate on their behalf on wage and workplace conditions.
Public employees who do not belong to the union cannot be required to pay fees the union would use for political activity like lobbying or union organizing. But Janus argues that forcing an unwilling employee to pay the limited “agency” fee is unconstitutional violation of free speech under the First Amendment.
Half the states, including Michigan, have enacted right-to-work laws that say employees don’t have to join a union or pay agency fees.
If the justices side with Janus, union leaders fear the potential loss of millions worth of fees, which could diminish their power to bargain for higher wages and better benefits for government employees, including teachers, first responders and other public employees.
Union leaders say such a ruling could lead to a free-rider problem in which some employees opt out of paying agency fees but still benefit from union representation.
The 1977 decision by the Supreme Court in Abood v. Detroit Board of Education held that government had an interest in promoting “labor peace” and preventing free-riding by employees.
Abood said a union may constitutionally spend money for expressing political views, such as the support of political candidates, but the spending must be financed from charges paid by employees who do not object to advancing the political ideas.
The AFL-CIO and other union groups have urged the high court to uphold Abood, saying that overturning it would effectively “constitutionalize” right to work for the public sector.
In the last five years, the Supreme Court under Chief Justice John Roberts has criticized Abood’s reasoning in at least two cases, though it has left the precedent standing.
Last year, the high court heard arguments in a California case brought by a group of public school teachers. After Scalia died, the court in March issued a one-sentence order indicating they had split 4-4 on the issue, so the lower court’s ruling in favor of the teachers’ union would remain in force.
Since Justice Neil Gorsuch joined the court this year, the Janus case presents another chance for the court to consider Abood.
Eighteen state attorneys general signed a friend of the court brief by the Michigan Attorney General’s Office, which urges the justices to abandon the “meaningless distinction between collective bargaining and other political activity.”
The states argue that collective bargaining is effectively “political activity” with significant implications for the public at large, pointing to municipal bankruptcies like Detroit’s, in which public-employee benefits played a role.
The states compare the requirement of public employees to subsidize union activities to “forced subsidization of a political party.”
The justices are likely to hear oral arguments in early 2018.