Whether it violates the First Amendment for a state to authorize a public employee union to collect a fee from non-members for the cost of benefits that the union is legally required to provide all employees.
Over 40 years ago, in Abood v. Detroit Board of Education, the Supreme Court ruled that public employees who choose not to join a union can be charged an “agency fee” to cover the cost of negotiating and implementing a collective bargaining agreement. Unions are required by law to provide those benefits to all employees, regardless of whether they join the union. Agency fees, the Court held, do not violate the First Amendment so long as they do not include unrelated expenditures for ideological speech. This case presents the question of whether Abood should be overruled. In an amicus brief filed with the Supreme Court, the ACLU argues that it should not. At stake in the case are not only the associational interests of public employees who do not join a union, but also the interests of those who do choose to associate in a union, and the state’s important interests in labor peace and workplace governance. We argue that Abood’s compromise, critical to the survival of public sector unions, vindicates each of those vital interests and should be affirmed.