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Janus v. American Federation of State

United States Supreme Court

June 27, 2018

MARK JANUS, PETITIONER
v.
AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, ET AL.

          Argued February 26, 2018

          ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 16-1466.

         Illinois law permits public employees to unionize. If a majority of the

employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees, even those who do not join. Only the union may engage in collective bargaining; individual employees may not be represented by another agent or negotiate directly with their employer. Non-members are required to pay what is generally called an "agency fee," i.e., a percentage of the full union dues. Under Abood v. Detroit Bd. of Ed., 431 U.S. 209, 235-236, this fee may cover union expenditures attributable to those activities "germane" to the union's collective-bargaining activities (chargeable expenditures), but may not cover the union's political and ideological projects (nonchargeable expenditures). The union sets the agency fee annually and then sends non-members a notice explaining the basis for the fee and the breakdown of expenditures. Here it was 78.06% of full union dues.
Petitioner Mark Janus is a state employee whose unit is represented by a public-sector union (Union), one of the respondents. He refused to join the Union because he opposes many of its positions, including those taken in collective bargaining. Illinois' Governor, similarly opposed to many of these positions, filed suit challenging the constitutionality of the state law authorizing agency fees. The state attorney general, another respondent, intervened to defend the law, while Janus moved to intervene on the Governor's side. The District Court dismissed the Governor's challenge for lack of standing, but it simultaneously allowed Janus to file his own complaint challenging the constitutionality of agency fees. The District Court granted respondents' motion to dismiss on the ground that the claim was foreclosed by Abood. The Seventh Circuit affirmed.

         Held:

1. The District Court had jurisdiction over petitioner's suit. Petitioner was undisputedly injured in fact by Illinois' agency-fee scheme and his injuries can be redressed by a favorable court decision. For jurisdictional purposes, the court permissibly treated his amended complaint in intervention as the operative complaint in a new lawsuit. United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157, distinguished. Pp. 6-7.
2. The State's extraction of agency fees from nonconsenting public-sector employees violates the First Amendment. Abood erred in concluding otherwise, and stare decisis cannot support it. Abood is therefore overruled. Pp. 7-47.
(a) Abood's holding is inconsistent with standard First Amendment principles. Pp. 7-18.
(1) Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns. E.g., West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 633. That includes compelling a person to subsidize the speech of other private speakers. E.g., Knox v. Service Employees, 567 U.S. 298, 309. In Knox and Harris v. Quinn, 573 U.S., the Court applied an "exacting" scrutiny standard in judging the constitutionality of agency fees rather than the more traditional strict scrutiny. Even under the more permissive standard, Illinois' scheme cannot survive. Pp. 7-11.
(2) Neither of Abood's two justifications for agency fees passes muster under this standard. First, agency fees cannot be upheld on the ground that they promote an interest in "labor peace." The Abood Court's fears of conflict and disruption if employees were represented by more than one union have proved to be unfounded: Exclusive representation of all the employees in a unit and the exaction of agency fees are not inextricably linked. To the contrary, in the Federal Government and the 28 States with laws prohibiting agency fees, millions of public employees are represented by unions that effectively serve as the exclusive representatives of all the employees. Whatever may have been the case 41 years ago when Abood was decided, it is thus now undeniable that "labor peace" can readily be achieved through less restrictive means than the assessment of agency fees.
Second, avoiding "the risk of 'free riders, '" Abood, supra, at 224, is not a compelling state interest. Free-rider "arguments . . . are generally insufficient to overcome First Amendment objections," Knox, supra, at 311, and the statutory requirement that unions represent members and nonmembers alike does not justify different treatment. As is evident in non-agency-fee jurisdictions, unions are quite willing to represent nonmembers in the absence of agency fees. And their duty of fair representation is a necessary concomitant of the authority that a union seeks when it chooses to be the exclusive representative. In any event, States can avoid free riders through less restrictive means than the imposition of agency fees. Pp. 11-18.
(b) Respondents' alternative justifications for Abood are similarly unavailing. Pp. 18-26.
(1) The Union claims that Abood is supported by the First Amendment's original meaning. But neither founding-era evidence nor dictum in Connick v. Myers, 461 U.S. 138, 143, supports the view that the First Amendment was originally understood to allow States to force public employees to subsidize a private third party. If anything, the opposite is true. Pp. 18-22.
(2) Nor does Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, provide a basis for Abood. Abood was not based on Pickering, and for good reasons. First, Pickering's framework was developed for use in cases involving "one employee's speech and its impact on that employee's public responsibilities," United States v. Treasury Employees, 513 U.S. 454, 467, while Abood and other agency-fee cases involve a blanket requirement that all employees subsidize private speech with which they may not agree. Second, Pickering's framework was designed to determine whether a public employee's speech interferes with the effective operation of a government office, not what happens when the government compels speech or speech subsidies in support of third parties. Third, the categorization schemes of Pickering and Abood do not line up. For example, under Abood, nonmembers cannot be charged for speech that concerns political or ideological issues; but under Pickering, an employee's free speech interests on such issues could be overcome if outweighed by the employer's interests. Pp. 22-26.
(c) Even under some form of Pickering, Illinois' agency-fee arrangement would not survive. Pp. 26-33.
(1)Respondents compare union speech in collective bargaining and grievance proceedings to speech "pursuant to [an employee's] official duties," Garcetti v. Ceballos, 547 U.S. 410, 421, which the State may require of its employees. But in those situations, the employee's words are really the words of the employer, whereas here the union is speaking on behalf of the employees. Garcetti therefore does not apply. Pp. 26-27.
(2) Nor does the union speech at issue cover only matters of private concern, which the State may also generally regulate under Pickering. To the contrary, union speech covers critically important and public matters such as the State's budget crisis, taxes, and collective bargaining issues related to education, child welfare, healthcare, and minority rights. Pp. 27-31.
(3) The government's proffered interests must therefore justify the heavy burden of agency fees on nonmembers' First Amendment interests. They do not. The state interests asserted in Abood- promoting "labor peace" and avoiding free riders-clearly do not, as explained earlier. And the new interests asserted in Harris and here-bargaining with an adequately funded agent and improving the efficiency of the work force-do not suffice either. Experience shows that unions can be effective even without agency fees. Pp. 31- 33.
(d) Stare decisis does not require retention of Abood. An analysis of several important factors that should be taken into account in deciding whether to overrule a past decision supports this conclusion. Pp. 33-47.
(1) Abood was poorly reasoned, and those arguing for retaining it have recast its reasoning, which further undermines its stare decisis effect, e.g., Citizens United v. Federal Election Comm'n, 558 U.S. 310, 363. Abood relied on Railway Employes v. Hanson, 351 U.S. 225, and Machinists v. Street, 367 U.S. 740, both of which involved private-sector collective-bargaining agreements where the government merely authorized agency fees. Abood did not appreciate the very different First Amendment question that arises when a State requires its employees to pay agency fees. Abood also judged the constitutionality of public-sector agency fees using Hanson's deferential standard, which is inappropriate in deciding free speech issues. Nor did Abood take into account the difference between the effects of agency fees in public- and private-sector collective bargaining, anticipate administrative problems with classifying union expenses as chargeable or nonchargeable, foresee practical problems faced by nonmembers wishing to challenge those decisions, or understand the inherently political nature of public-sector bargaining. Pp. 35-38.
(2) Abood's lack of workability also weighs against it. Its line between chargeable and nonchargeable expenditures has proved to be impossible to draw with precision, as even respondents recognize. See, e.g., Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 519. What is more, a nonmember objecting to union chargeability determinations will have much trouble determining the accuracy of the union's reported expenditures, which are often expressed in extremely broad and vague terms. Pp. 38-41.
(3) Developments since Abood, both factual and legal, have "eroded" the decision's "underpinnings" and left it an outlier among the Court's First Amendment cases. United States v. Gaudin, 515 U.S. 506, 521. Abood relied on an assumption that "the principle of exclusive representation in the public sector is dependent on a union or agency shop," Harris, 573 U.S., at - but experience has shown otherwise. It was also decided when public-sector unionism was a relatively new phenomenon. Today, however, public-sector union membership has surpassed that in the private sector, and that ascendency corresponds with a parallel increase in public spending. Abood is also an anomaly in the Court's First Amendment jurisprudence, where exacting scrutiny, if not a more demanding standard, generally applies. Overruling Abood will also end the oddity of allowing public employers to compel union support (which is not supported by any tradition) but not to compel party support (which is supported by tradition), see, e.g., Elrod v. Burns, 427 U.S. 347. Pp. 42-44.
(4) Reliance on Abood does not carry decisive weight. The uncertain status of Abood, known to unions for years; the lack of clarity it provides; the short-term nature of collective-bargaining agreements; and the ability of unions to protect themselves if an agency-fee provision was crucial to its bargain undermine the force of reliance. Pp. 44-47.
3. For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. Pp. 48-49.

851 F.3d 746, reversed and remanded.

          ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and Kennedy, Thomas, and, Gorsuch, JJ., joined. Sotomayor, J., filed a dissenting opinion. KAGAN, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined.

          OPINION

          ALITO JUSTICE.

         Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.

         We upheld a similar law in Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled.

         I

         A

         Under the Illinois Public Labor Relations Act (IPLRA), employees of the State and its political subdivisions are permitted to unionize. See Ill.Comp.Stat., ch. 5, §315/6(a) (West 2016). If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees. §§315/3(s)(1), 315/6(c), 315/9. Employees in the unit are not obligated to join the union selected by their co-workers, but whether they join or not, that union is deemed to be their sole permitted representative. See §§315/6(a), (c).

         Once a union is so designated, it is vested with broad authority. Only the union may negotiate with the employer on matters relating to "pay, wages, hours[, ] and other conditions of employment." §315/6(c). And this authority extends to the negotiation of what the IPLRA calls "policy matters," such as merit pay, the size of the work force, layoffs, privatization, promotion methods, and non-discrimination policies. §315/4; see §315/6(c); see generally, e.g., Illinois Dept. of Central Management Servs. v. AFSCME, Council 31, No. S-CB-16-17 etc., 33 PERI ¶67 (ILRB Dec. 13, 2016) (Board Decision).

         Designating a union as the employees' exclusive representative substantially restricts the rights of individual employees. Among other things, this designation means that individual employees may not be represented by any agent other than the designated union; nor may individual employees negotiate directly with their employer. §§315/6(c)-(d), 315/10(a)(4); see Matthews v. Chicago Transit Authority, 2016 IL 117638, 51 N.E.3d 753, 782; accord, Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683-684 (1944). Protection of the employees' interests is placed in the hands of the union, and therefore the union is required by law to provide fair representation for all employees in the unit, members and nonmembers alike. §315/6(d).

         Employees who decline to join the union are not assessed full union dues but must instead pay what is generally called an "agency fee," which amounts to a percentage of the union dues. Under Abood, nonmembers may be charged for the portion of union dues attributable to activities that are "germane to [the union's] duties as collective-bargaining representative," but nonmembers may not be required to fund the union's political and ideological projects. 431 U.S., at 235; see id., at 235-236. In labor-law parlance, the outlays in the first category are known as "chargeable" expenditures, while those in the latter are labeled "nonchargeable."

         Illinois law does not specify in detail which expenditures are chargeable and which are not. The IPLRA provides that an agency fee may compensate a union for the costs incurred in "the collective bargaining process, contract administration[, ] and pursuing matters affecting wages, hours[, ] and conditions of employment." §315/6(e); see also §315/3(g). Excluded from the agency-fee calculation are union expenditures "related to the election or support of any candidate for political office." §315/3(g); see §315/6(e).

         Applying this standard, a union categorizes its expenditures as chargeable or nonchargeable and thus determines a nonmember's "proportionate share," §315/6(e); this determination is then audited; the amount of the "proportionate share" is certified to the employer; and the employer automatically deducts that amount from the non-members' wages. See ibid.; App. to Pet. for Cert. 37a; see also Harris v. Quinn, 573 U.S.__, ____(2014) (slip op., at 19-20) (describing this process). Nonmembers need not be asked, and they are not required to consent before the fees are deducted.

         After the amount of the agency fee is fixed each year, the union must send nonmembers what is known as a Hudson notice. See Teachers v. Hudson, 475 U.S. 292 (1986). This notice is supposed to provide nonmembers with "an adequate explanation of the basis for the [agency] fee." Id., at 310. If nonmembers "suspect that a union has improperly put certain expenses in the [chargeable] category," they may challenge that determination. Harris, supra, at__(slip op., at 19).

         As illustrated by the record in this case, unions charge nonmembers, not just for the cost of collective bargaining per se, but also for many other supposedly connected activities. See App. to Pet. for Cert. 28a-39a. Here, the nonmembers were told that they had to pay for "[l]obbying," "[s]ocial and recreational activities," "advertising," "[m]embership meetings and conventions," and "litigation," as well as other unspecified "[s]ervices" that "may ultimately inure to the benefit of the members of the local bargaining unit." Id., at 28a-32a. The total chargeable amount for nonmembers was 78.06% of full union dues. Id., at 34a.

         B

         Petitioner Mark Janus is employed by the Illinois Department of Healthcare and Family Services as a child support specialist. Id., at 10a. The employees in his unit are among the 35, 000 public employees in Illinois who are represented by respondent American Federation of State, County, and Municipal Employees, Council 31 (Union). Ibid. Janus refused to join the Union because he opposes "many of the public policy positions that [it] advocates," including the positions it takes in collective bargaining. Id., at 10a, 18a. Janus believes that the Union's "behavior in bargaining does not appreciate the current fiscal crises in Illinois and does not reflect his best interests or the interests of Illinois citizens." Id., at 18a. Therefore, if he had the choice, he "would not pay any fees or otherwise subsidize [the Union]." Ibid. Under his unit's collective-bargaining agreement, however, he was required to pay an agency fee of $44.58 per month, id., at 14a-which would amount to about $535 per year.

         Janus's concern about Illinois' current financial situation is shared by the Governor of the State, and it was the Governor who initially challenged the statute authorizing the imposition of agency fees. The Governor commenced an action in federal court, asking that the law be declared unconstitutional, and the Illinois attorney general (a respondent here) intervened to defend the law. App. 41. Janus and two other state employees also moved to intervene-but on the Governor's side. Id., at 60.

         Respondents moved to dismiss the Governor's challenge for lack of standing, contending that the agency fees did not cause him any personal injury. E.g., id., at 48-49. The District Court agreed that the Governor could not maintain the lawsuit, but it held that petitioner and the other individuals who had moved to intervene had standing because the agency fees unquestionably injured them. Accordingly, "in the interest of judicial economy," the court dismissed the Governor as a plaintiff, while simultaneously allowing petitioner and the other employees to file their own complaint. Id., at 112. They did so, and the case proceeded on the basis of this new complaint.

         The amended complaint claims that all "nonmember fee deductions are coerced political speech" and that "the First Amendment forbids coercing any money from the non-members." App. to Pet. for Cert. 23a. Respondents moved to dismiss the amended complaint, correctly recognizing that the claim it asserted was foreclosed by Abood. The District Court granted the motion, id., at 7a, and the Court of Appeals for the Seventh Circuit affirmed, 851 F.3d 746 (2017).

         Janus then sought review in this Court, asking us to overrule Abood and hold that public-sector agency-fee arrangements are unconstitutional. We granted certiorari to consider this important question. 582 U.S.__(2017).

         II

         Before reaching this question, however, we must consider a threshold issue. Respondents contend that the District Court lacked jurisdiction under Article III of the Constitution because petitioner "moved to intervene in [the Governor's] jurisdictionally defective lawsuit." Union Brief in Opposition 11; see also id., at 13-17; State Brief in Opposition 6; Brief for Union Respondent i, 16-17; Brief for State Respondents 14, n. 1. This argument is clearly wrong.

         It rests on the faulty premise that petitioner intervened in the action brought by the Governor, but that is not what happened. The District Court did not grant petitioner's motion to intervene in that lawsuit. Instead, the court essentially treated petitioner's amended complaint as the operative complaint in a new lawsuit. App. 110-112. And when the case is viewed in that way, any Article III issue vanishes. As the District Court recognized-and as respondents concede-petitioner was injured in fact by Illinois' agency-fee scheme, and his injuries can be redressed by a favorable court decision. Ibid.; see Record 2312-2313, 2322-2323. Therefore, he clearly has Article III standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). It is true that the District Court docketed petitioner's complaint under the number originally assigned to the Governor's complaint, instead of giving it a new number of its own. But Article III jurisdiction does not turn on such trivialities.

         The sole decision on which respondents rely, United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157 (1914), actually works against them. That case concerned a statute permitting creditors of a government contractor to bring suit on a bond between 6 and 12 months after the completion of the work. Id., at 162. One creditor filed suit before the 6-month starting date, but another intervened within the 6-to-12-month window. The Court held that the "[t]he intervention [did] not cure th[e] vice in the original [prematurely filed] suit," but the Court also contemplated treating "intervention ... as an original suit" in a case in which the intervenor met the requirements that a plaintiff must satisfy-e.g., filing a separate complaint and properly serving the defendants. Id., at 163-164. Because that is what petitioner did here, we may reach the merits of the question presented.

         III

         In Abood, the Court upheld the constitutionality of an agency-shop arrangement like the one now before us, 431 U.S., at 232, but in more recent cases we have recognized that this holding is "something of an anomaly," Knox v. Service Employees, 567 U.S. 298, 311 (2012), and that Abood's "analysis is questionable on several grounds," Harris, 573 U.S., at__(slip op., at 17); see id., at __-__(slip op., at 17-20) (discussing flaws in Abood's reasoning). We have therefore refused to extend Abood to situations where it does not squarely control, see Harris, supra, at __-__(slip op., at 27-29), while leaving for another day the question whether Abood should be overruled, Harris, supra, at__, n. 19 (slip op., at 27, n. 19); see Knox, supra, at 310-311.

         We now address that question. We first consider whether Abood's holding is consistent with standard First Amendment principles.

         A

         The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech. We have held time and again that freedom of speech "includes both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714 (1977); see Riley v. National Federation of Blind of N. C, Inc., 487 U.S. 781, 796-797 (1988); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256-257 (1974); accord, Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 9 (1986) (plurality opinion). The right to eschew association for expressive purposes is likewise protected. Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984) ("Freedom of association . . . plainly presupposes a freedom not to associate"); see Pacific Gas & Elec, supra, at 12 ("[F]orced associations that burden protected speech are impermissible"). As Justice Jackson memorably put it: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943) (emphasis added).

         Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues-say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.

         Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved restrictions on what can be said, rather than laws compelling speech. But measures compelling speech are at least as threatening.

         Free speech serves many ends. It is essential to our democratic form of government, see, e.g., Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964), and it furthers the search for truth, see, e.g., Thornhill v. Alabama, 310 U.S. 88, 95 (1940). Whenever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends.

         When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding "involuntary affirmation" of objected-to beliefs would require "even more immediate and urgent grounds" than a law demanding silence. Barnette, supra, at 633; see also Riley, supra, at 796-797 (rejecting "deferential test" for compelled speech claims).

         Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns. Knox, supra, at 309; United States v. United Foods, Inc., 533 U.S. 405, 410 (2001); Abood, supra, at 222, 234-235. As Jefferson famously put it, "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical." A Bill for Establishing Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) (emphasis deleted and footnote omitted); see also Hudson, 475 U.S., at 305, n. 15. We have therefore recognized that a "'significant impingement on First Amendment rights'" occurs when public employees are required to provide financial support for a union that "takes many positions during collective bargaining that have powerful political and civic consequences." Knox, supra, at 310-311 (quoting Ellis v. Railway Clerks, 466 U.S. 435, 455 (1984)).

         Because the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed. Our free speech cases have identified "levels of scrutiny" to be applied in different contexts, and in three recent cases, we have considered the standard that should be used in judging the constitutionality of agency fees. See Knox, supra; Harris, supra; Friedrichs v. California Teachers Assn., 578 U.S.__(2016) (per curiam) (affirming decision below by equally divided Court).

         In Knox, the first of these cases, we found it sufficient to hold that the conduct in question was unconstitutional under even the test used for the compulsory subsidization of commercial speech. 567 U.S., at 309-310, 321-322. Even though commercial speech has been thought to enjoy a lesser degree of protection, see, e.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, 562-563 (1980), prior precedent in that area, specifically United Foods, supra, had applied what we characterized as "exacting" scrutiny, Knox, 567 U.S., at 310, a less demanding test than the "strict" scrutiny that might be thought to apply outside the commercial sphere. Under "exacting" scrutiny, we noted, a compelled subsidy must "serve a compelling state interest that cannot be achieved through means significantly less restrictive of associa-tional freedoms." Ibid, (internal quotation marks and alterations omitted).

         In Harris, the second of these cases, we again found that an agency-fee requirement failed "exacting scrutiny." 573 U.S., at__(slip op., at 33). But we questioned whether that test provides sufficient protection for free speech rights, since "it is apparent that the speech compelled" in agency-fee cases "is not commercial speech." Id., at__(slip op., at 30).

         Picking up that cue, petitioner in the present case contends that the Illinois law at issue should be subjected to "strict scrutiny." Brief for Petitioner 36. The dissent, on the other hand, proposes that we apply what amounts to rational-basis review, that is, that we ask only whether a government employer could reasonably believe that the exaction of agency fees serves its interests. See post, at 4 (KAGAN, J., dissenting) ("A government entity could reasonably conclude that such a clause was needed"). This form of minimal scrutiny is foreign to our free-speech jurisprudence, and we reject it here. At the same time, we again find it unnecessary to decide the issue of strict scrutiny because the Illinois scheme cannot survive under even the more permissive standard applied in Knox and Harris.

         In the remainder of this part of our opinion (Parts III-B and III-C), we will apply this standard to the justifications for agency fees adopted by the Court in Abood. Then, in Parts IV and V, we will turn to alternative rationales proffered by respondents and their amici.

         B

         In Abood, the main defense of the agency-fee arrangement was that it served the State's interest in "labor peace," 431 U.S., at 224. By "labor peace," the Abood Court meant avoidance of the conflict and disruption that it envisioned would occur if the employees in a unit were represented by more than one union. In such a situation, the Court predicted, "inter-union rivalries" would foster "dissension within the work force," and the employer could face "conflicting demands from different unions." Id., at 220-221. Confusion would ensue if the employer entered into and attempted to "enforce two or more agreements specifying different terms and conditions of employment." Id., at 220. And a settlement with one union would be "subject to attack from [a] rival labor organizatio[n]." Id., at 221.

         We assume that "labor peace," in this sense of the term, is a compelling state interest, but Abood cited no evidence that the pandemonium it imagined would result if agency fees were not allowed, and it is now clear that Abood's fears were unfounded. The Abood Court assumed that designation of a union as the exclusive representative of all the employees in a unit and the exaction of agency fees are inextricably linked, but that is simply not true. Harris, supra, at__(slip op., at 31).

         The federal employment experience is illustrative. Under federal law, a union chosen by majority vote is designated as the exclusive representative of all the employees, but federal law does not permit agency fees. See 5 U.S.C. §§7102, 7111(a), 7114(a). Nevertheless, nearly a million federal employees-about 27% of the federal work force-are union members.[1] The situation in the Postal Service is similar. Although permitted to choose an exclusive representative, Postal Service employees are not required to pay an agency fee, 39 U.S.C. §§ 1203(a), 1209(c), and about 400, 000 are union members.[2] Likewise, millions of public employees in the 28 States that have laws generally prohibiting agency fees are represented by unions that serve as the exclusive representatives of all the employees.[3] Whatever may have been the case 41 years ago when Abood was handed down, it is now undeniable that "labor peace" can readily be achieved "through means significantly less restrictive of associational freedoms" than the assessment of agency fees. Harris, supra, at__(slip op., at 30) (internal quotation marks omitted).

         C

         In addition to the promotion of "labor peace," Abood cited "the risk of 'free riders'" as justification for agency fees, 431 U.S., at 224. Respondents and some of their amici endorse this reasoning, contending that agency fees are needed to prevent nonmembers from enjoying the benefits of union representation without shouldering the costs. Brief for Union Respondent 34-36; Brief for State Respondents 41-45; see, e.g., Brief for International Brotherhood of Teamsters as Amicus Curiae 3-5.

         Petitioner strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.

         Whichever description fits the majority of public employees who would not subsidize a union if given the option, avoiding free riders is not a compelling interest. As we have noted, "free-rider arguments . . . are generally insufficient to overcome First Amendment objections." Knox, 567 U.S., at 311. To hold otherwise across the board would have startling consequences. Many private groups speak out with the objective of obtaining government action that will have the effect of benefiting non-members. May all those who are thought to benefit from such efforts be compelled to subsidize this speech?

         Suppose that a particular group lobbies or speaks out on behalf of what it thinks are the needs of senior citizens or veterans or physicians, to take just a few examples. Could the government require that all seniors, veterans, or doctors pay for that service even if they object? It has never been thought that this is permissible. "[P]rivate speech often furthers the interests of nonspeakers," but "that does not alone empower the state to compel the speech to be paid for." Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 556 (1991) (Scalia, J., concurring in judgment in part and dissenting in part). In simple terms, the First Amendment does not permit the government to compel a person to pay for another party's speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.[4]

         Those supporting agency fees contend that the situation here is different because unions are statutorily required to "represen[t] the interests of all public employees in the unit," whether or not they are union members. §315/6(d); see, e.g., Brief for State Respondents 40-41, 45; post, at 7 (KAGAN, J., dissenting). Why might this matter?

         We can think of two possible arguments. It might be argued that a State has a compelling interest in requiring the payment of agency fees because (1) unions would otherwise be unwilling to represent nonmembers or (2) it would be fundamentally unfair to require unions to provide fair representation for nonmembers if nonmembers were not required to pay. Neither of these arguments is sound.

         First, it is simply not true that unions will refuse to serve as the exclusive representative of all employees in the unit if they are not given agency fees. As noted, unions represent millions of public employees in jurisdictions that do not permit agency fees. No union is ever compelled to seek that designation. On the contrary, designation as exclusive representative is avidly sought.[5] Why is this so?

         Even without agency fees, designation as the exclusive representative confers many benefits. As noted, that status gives the union a privileged place in negotiations over wages, benefits, and working conditions. See §315/6(c). Not only is the union given the exclusive right to speak for all the employees in collective bargaining, but the employer is required by state law to listen to and to bargain in good faith with only that union. §315/7. Designation as exclusive representative thus "results in a tremendous increase in the power" of the union. American Communications Assn. v. Douds, 339 U.S. 382, 401 (1950).

         In addition, a union designated as exclusive representative is often granted special privileges, such as obtaining information about employees, see §315/6(c), and having dues and fees deducted directly from employee wages, §§315/6(e)-(f). The collective-bargaining agreement in this case guarantees a long list of additional privileges. See App. 138-143.

         These benefits greatly outweigh any extra burden imposed by the duty of providing fair representation for nonmembers. What this duty entails, in simple terms, is an obligation not to "act solely in the interests of [the union's] own members." Brief for State Respondents 41; see Cintron v. AFSCME, Council 31, No. S-CB-16-032, p. 1, 34 PERI ¶105 (ILRB Dec. 13, 2017) (union may not intentionally direct "animosity" toward nonmembers based on their "dissident union practices"); accord, 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 271 (2009); Vaca v. Sipes, 386 U.S. 171, 177 (1967).

         What does this mean when it comes to the negotiation of a contract? The union may not negotiate a collective-bargaining agreement that discriminates against non-members, see Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 202-203 (1944), but the union's bargaining latitude would be little different if state law simply prohibited public employers from entering into agreements that discriminate in that way. And for that matter, it is questionable whether the Constitution would permit a public-sector employer to adopt a collective-bargaining agreement that discriminates against nonmembers. See id., at 198-199, 202 (analogizing a private-sector union's fair-representation duty to the duty "the Constitution imposes upon a legislature to give equal protection to the interests of those for whom it legislates"); cf. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 69 (2006) (recognizing that government may not "impose penalties or withhold benefits based on membership in a disfavored group" where doing so "ma[kes] group membership less attractive"). To the extent that an employer would be barred from acceding to a discriminatory agreement anyway, the union's duty not to ask for one is superfluous. It is noteworthy that neither respondents nor any of the 39 amicus briefs supporting them-nor the dissent-has explained why the duty of fair representation causes public-sector unions to incur significantly greater expenses than they would otherwise bear in negotiating collective-bargaining agreements.

         What about the representation of nonmembers in grievance proceedings? Unions do not undertake this activity solely for the benefit of nonmembers-which is why Illinois law gives a public-sector union the right to send a representative to such proceedings even if the employee declines union representation. §315/6(b). Representation of nonmembers furthers the union's interest in keeping control of the administration of the collective-bargaining agreement, since the resolution of one employee's grievance can affect others. And when a union controls the grievance process, it may, as a practical matter, effectively subordinate "the interests of [an] individual employee ... to the collective interests of all employees in the bargaining unit." Alexander v. Gardner-Denver Co., 415 U.S. 36, 58, n. 19 (1974); see Stahulak v. Chicago, 184 Ill.2d 176, 180-181, 703 N.E.2d 44, 46-47 (1998); Ma-honey v. Chicago, 293 Ill.App.3d 69, 73-74, 687 N.E.2d 132, 135-137 (1997) (union has "'discretion to refuse to process'" a grievance, provided it does not act "arbitrarily]" or "in bad faith" (emphasis deleted)).

         In any event, whatever unwanted burden is imposed by the representation of nonmembers in disciplinary matters can be eliminated "through means significantly less restrictive of associational freedoms" than the imposition of agency fees. Harris, 573 U.S., at__(slip op., at 30) (internal quotation marks omitted). Individual nonmembers could be required to pay for that service or could be denied union representation altogether.[6] Thus, ...


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