Late last month, the Supreme Court announced that it would hear Janus v. AFSCME, a case that challenges public-sector unions' right to collect fees from nonmembers. Such “fair share” fees have been a legal bedrock of labor unions since the Supreme Court's 1977 ruling in Abood v. Detroit Board of Education. In Abood, the court held that unions could lawfully charge fees to non–union members to help offset the costs of “collective bargaining, contract administration, and grievance adjustment” from which all employees benefit, as long as the union does not use such fees for political purposes.
Critical to any discussion of Janus is the fact that federal law also compels unions to advocate on behalf of non–union members. Thus, overturning Abood would immediately incentivize free-riding, thereby threatening public-sector unions' very existence. If the court overturns Abood as anticipated, though, unions should immediately challenge their obligation to represent free-riding nonmembers as a violation of their own rights under the First Amendment. And they should win.
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