To My American Friends: How Canada's High Court Dealt with a Janus-Like Union Dues Challenge

September 29 2017

A potentially explosive antiunion decision from the highly politicized and polarized US Supreme Court

may be coming down the pipes.
The Court agreed to hear an appeal in a case called Janus v. AFSCME, which involves the question of whether a requirement in a collective agreement for unionized public sector employees to pay union agency fees  violates the employees’ Constitutional freedom of expression.
Agency fees are required to be paid to unions to help fund a share of costs of bargaining and administrating that contract.   Agency fees represent a smaller portion of the full union dues paid by union members because they are reduced by the share of union expenses that are devoted to non-collective bargaining purposes, such as political activity.
We have no equivalent distinction in Canada between union dues for bargaining purposes and union dues for other purposes, although Conservative governments (such as the Harper government) have attempted to introduce that distinction into law.  Recall that the Harper government passed a law (Bill C-377) in 2014 requiring unions to publicly report all monies spent by unions, including the share going to political activities as well as time spent by union officials on political activities.   That law was probably setting up a move to legislate an American style distinction between “agency fees” and “union dues” to enable employees.
Think Progress explained the US model of agency fees as follows:

Unions are required by law to bargain on behalf of every worker in a unionized shop, even if those workers opt not to join the union. As such, non-members receive the same higher wages (one study found that workers in unionized shops enjoy a wage premium of nearly 12 percent) and benefits enjoyed by their coworkers who belong to the union.

Absent something else, this arrangement would create a free-rider problem, because individual workers have little incentive to join the union if they know they will get all the benefits of unionizing regardless of whether they reimburse the union for its costs. Eventually, unions risk becoming starved for funds and collapsing, causing the workers once represented by a union to lose the benefits of collective bargaining.  To prevent this free-rider problem, union contracts often include a provision requiring non-members to pay agency fees.

The plaintiff in Janus is arguing that mandatory agency fees–the requirement to contribute to the cost of bargaining and enforcing a collective agreement–violate employee’s freedom of speech.
It might seem like an odd argument, since paying a small fee to an organization that bargains you higher wages and benefits doesn’t prevent you from expressing your opinions about anything, but in the highly

politicized US where Republicans and much of the business community perceive unions as political opponents rather than worker advocates, it represents a genius opportunity to undermine the principal source of union funding and hence to weaken union power.  The argument being made in Janus has never won the day in the US courts in the past, however the antiunion crowd is ecstatic with the thought that a newly minted right wing high court will actually accept it. The key is Tump’s appointment of conservative Justice Neil Gorsuch, who shifts the balance of the Court to the right.  A win by the plaintiffs in Janus will essentially make mandatory union dues and agency fees in the American public sector illegal.  Here is a Washington Post story on the Janus case, if you want to read more.
The Canadian Supreme Court’s Decision on Mandatory Union Dues
For our American friends, it might be interesting to note that a similar issue was argued before the Canadian Supreme Court in the 1991 case of Lavigne v. OPSEU.    In that case, a public sector employee argued that a mandatory union dues clause violated both his freedom of association and freedom of expression, because it forced him to contribute money to causes supported by the union with which he did not agree.  He lost both arguments.
Here is how the freedom of association argument decision is summarized in Chapter 48 of my Law of Work book examining the Charter of Rights and Freedoms, co-authored by myself and Vancouver labour lawyer Ben Oliphant.

The Court’s decision on the freedom of expression argument is much clearer.  All seven of the judges ruled that a contractual requirement for an employee to pay union dues to a union that bargains a collective agreement that applies to the employee does not violate freedom of expression.   And keep in mind that in Canada, those union dues were used for some political purposes and not just collective bargaining purposes. Justice Wilson concluded:

Justice Bertha Wilson of the Supreme Court of Canada

Justice Wilson  on the Supreme Court of Canada:  
The fact that the appellant is obliged to pay dues pursuant to the agency shop clause in the collective agreement does not inhibit him in any meaningful way from expressing a contrary view as to the merits of the causes supported by the Union.  He is free to speak his mind as and when he wishes.  Nor does his being [required to pay union dues]  have such an effect.  It is a built‑in feature of the Rand formula that Union activities represent only the expression of the Union as the representative of the majority of employees.  It is not the voice of one and all in the bargaining unit.  I find therefore that the appellant’s s. 2(b) right has not been infringed.

Don’t expect the US Supreme Court to be persuaded by the logic of seven Canadian Supreme Court justices though.  Certainly not in these highly partisan political times.  The entire antiunion, Republican movement is counting on the Republican dominated Supreme Court to do their bidding and land a blow against the evil public sector unions.
We will have more on the Janus case as developments occur.