The U.S. Supreme Court, Unions, And The Future Of Collective Bargaining In The Public Sector

by Adler Pollock & Sheehan P.C.

The U.S. Supreme Court will soon hear a case that has the potential to rock the world of unions that represent public sector employees in Rhode Island and throughout the country.  The Court will decide whether state government workers who do not want to be members of a union must still pay an “agency fee,” equal in amount to union dues, to cover the union’s costs in negotiating and enforcing the terms of collective bargaining agreements.  The decision could effectively invalidate a Rhode Island statute, R.I. General Laws § 36-11-2, which requires public sector workers who do not wish to belong to the union designated as their exclusive bargaining representative to pay an agency fee equal to the dues paid by union members.

This is not the first time that the U.S. Supreme Court has addressed the union dues/agency fee issue.  Forty (40) years ago, in Abood v. Detroit Board of Education, the Court deemed constitutional the agency fees paid to unions and used to finance costs related to collective bargaining, contract administration, and the grievance process.  Then, last year, in Friedrichs v. California Teachers Association, a group of California public school teachers again challenged agency fees, claiming that the use of their money to support political candidates and political causes violated their First Amendment rights.  The California teachers appeared likely to win the case and get out from under having agency fees deducted from their paychecks until the sudden death of Justice Antonin Scalia, which left the 9-justice Supreme Court in a 4-to-4 deadlock.  Without Justice Scalia’s vote to break the tie, the unions lived to see another fee-collecting day, with the lower court’s decision in favor of the unions being allowed to stand.

Now, the Supreme Court is set to hear a new challenge to agency fees in the matter of Janus v. the American Federation of State, County and Municipal Employees.  Mark Janus, an Illinois state worker, has brought a lawsuit claiming that he disagrees with his union’s positions and should not be forced to fund its work.  He claims that all union business – and not just the support of political candidates and legislative bills – is political in nature because it involves matters of public concern, and that, therefore, he and other state government workers should not have to pay any fees at all to the union.  With conservative Justice Neil Gorsuch now sitting in the seat left vacant by Justice Scalia, the Supreme Court appears poised to decide against the public sector unions and allow state workers to get the benefit of the unions’ work – negotiating contracts, enforcing them, and advocating for employees in the grievance process – without having to pay a dime.

What does this mean for public sector workers and the governments that employ them?  It means that unions are likely to see a significant drop in revenue and have significantly less funds available to negotiate and enforce the collective bargaining agreements that govern the terms and conditions of employment.  It also means that employers may be pressed to treat union members differently from workers who are not union members and who do not pay agency fees.  Employers may be asked to apply contractual seniority terms, for instance, only to those workers who pay union dues or an agency fee, thereby giving priority to dues/fee-paying workers in matters that include promotions, layoffs, overtime, and vacation time.  Legislative bills purporting to legalize discriminatory treatment of non-paying workers and relieving unions of the duty to represent “free riding” bargaining unit workers may also start coming before the Rhode Island General Assembly and other state legislatures.

A loss for the unions in Janus may also mean more labor unrest, with unions feeling forced to “dig in their heels” rather than resolve disputes with the employer to prove to their workers that union membership has value; that the union will provide the leverage necessary to back them in disputes over wages, benefits, and working conditions; and that union membership will mean increases in workers’ salaries, improved benefits for workers and their families, and greater opportunities for advancement.  Even in states that have no-strike laws for public sector employees, unions may feel pressured to engage in work stoppages and other disruptive job action to try to “win back” workers who have stopped supporting the work of their unions with dues money and agency fees.  If the Janus case results in weakened unions and a fractured workforce, then at best, there is likely to be an element of chaos in public sector labor relations, at least until governmental entities, state legislators, policy makers, and unions figure out how best to promote sound labor relations with a workforce that includes employees who wish to have their unions serve as their collective voice, as well as employees who reject the concept of financially supporting the duly-elected unions that may not reflect their personal political views.

With union membership currently at an all-time low in both the private and public sectors, expect unions to focus on promoting the benefits of union membership to workers who may not have grown up in union households.  Latino workers, in particular, could play a significant role in determining the future of labor unions and potentially increasing the ranks of workers who support the work of unions in collectively representing workers and leveling the playing field as between workers and the companies that hire, pay, and fire them.  Expect unions to focus on educating their Latino members about the benefits of the collective bargaining process.  Latino workers have a median age that is younger than that of workers in other groups, and their rapid growth as a presence in the American workforce gives them the potential to provide much needed support to unions, as well as the potential to serve as the union leaders of the future.

The Janus case may challenge governmental employers, unions, and employees to reinvent the concept of labor relations in the public sector.  Perhaps this crisis in public sector labor law will spur groups of workers that have, until now, been underrepresented in the collective bargaining process and in union leadership to step forward and claim a voice in addressing the challenges that lie ahead.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Adler Pollock & Sheehan P.C. | Attorney Advertising

Written by:

Adler Pollock & Sheehan P.C.

Adler Pollock & Sheehan P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.