JURIST Guest Columnist Professor Joseph E. Slater of Toledo University College of Law discusses the damage the US Supreme Court's ruling in Janus will likely inflict on organised labor . . .
In Janus v. AFSCME, the Supreme Court, in a 5-4 decision, overturned a 41-year old precedent and held that all union security clauses in public-sector labor contracts violate the First Amendment. A union security clause is provision in a contract between a union and an employer that obliges members of the union bargaining unit to pay at least that portion of their dues that goes to “activities related to collective bargaining.” Janus will significantly damage unions economically. That is because “duty of fair representation” (“DFR”) rules require unions to represent employees whether or not they pay dues. It will thus hurt the ability of unions to represent workers, and it will hurt the Democratic Party institutionally. It also creates some uncertainty regarding the First Amendment’s protection of public employee speech in other contexts.
Union security clauses and the DFR arose out of the U.S model of “exclusive majority”
representation. Under this model, if a majority of a group of workers in an appropriate bargaining unit show that they support unionization, a union becomes the exclusive bargaining representative for all the workers in that unit (if only a minority support unionization, no union results). The DFR is a corollary duty: because unions have this exclusive power, they must represent employees in a fair, competent manner. Crucially, the DFR includes the duty to represent bargaining unit members in both contract negotiations and grievance/arbitration cases regardless of whether they pay dues.
Thus, so-called “right to work” laws – laws barring union security agreements, the rule Janus now imposes as a matter of Constitutional law – create significant “free rider” problems for unions. Under this rule, a not-insignificant number of employees will receive the benefits of union membership without paying for them. While some employees oppose unions and believe they could do better on their own, some employees are happy to be in a union but not pay dues. For example, as a brief in Janus showed, unions have been recertified by a majority vote of employees, even though a majority had opted out of paying any dues.
The Supreme Court first ruled on union security clauses in public employment in Abood v. Detroit Board of Education. Abood wrestled with the First Amendment implications of a government contract requiring all bargaining unit members to pay dues when some might not support the union’s activities. The Court balanced the state’s interest in robust collective bargaining as a tool for effective management and labor peace against the constitutional interests of dissenting employees. It created the following compromise: union security clauses could require payment of that portion of union dues that went to activities “related to collective bargaining” but not that portion that went to activities not related to collective bargaining. Subsequent cases established that the main activities related to collective bargaining were contract negotiation and administration (including grievance/arbitration cases); the main activity not related was politics. Thus, under Abood, if a union spent 90% of its dues income on contract negotiation and administration and 10% on politics, a union security provision could not require objecting bargaining unit members to pay 10% of their dues. Courts and labor boards also developed rules about giving information to employees about their rights and opportunities to challenge a union’s calculations.
In recent years, however, it became clear that some Justices had grown skeptical of Abood. Justice Alito first expressed his concerns in Knox v. Service Employees Int’l Union, Local 1000 (“our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate”). Then in Harris v. Quinn, a five-member majority of the court, while reaching a much more limited decision on the facts, indicated a willingness to consider overturning Abood. Many thought Friedrichs v. California Teachers Ass’n would overturn or alter Abood, but Justice Scalia’s death left the Court deadlocked 4-4, preserving Abood.
Janus overturned Abood entirely. The majority opinion by Justice Alito, joined by
Justices Thomas, Gorsuch, Kennedy, and Chief Justice Roberts, argued that Abood’s balancing was incorrect because it (i) undervalued plaintiffs’ First Amendment interests by using insufficiently strict scrutiny; and (ii) overvalued the state’s interest in union security clauses. Regarding the former, the majority rejected a comparison to the line of cases (Connick, Pickering, and Garcetti) in which the Court allowed the government significant discretion in limiting the free speech rights of individual public employees because of the government’s broad rights in its role as an employer. These cases include the rule that normal workplace grievances are not a matter of “public concern” and therefore cannot implicate the First Amendment. The Janus majority reasoned that the collective power of unions transformed speech about workplace matters normally outside the protection of the First Amendment into matters of public concern. It gave as an example the impact of public employees’ pay and benefits on public budgets, although it did not acknowledge that pension benefit levels (a main example) are illegal subjects of bargaining under almost all public-sector labor laws. Fundamentally, the majority essentially held that everything a public-sector union does is inherently a matter of public concern.
The majority also argued that Abood exaggerated the government’s interest in “labor peace” and collective bargaining. The majority stated that in “right to work” jurisdictions, including but not limited to the federal sector, unions represent their members in bargaining effectively.
The majority rejected the “free rider” argument, noting that unions in “right to work” jurisdictions still seek to become exclusive representatives, and thus they must see a benefit for themselves in that status. Intriguingly, the majority implied that states could alter DFR rules to allow unions to charge employees they represent who do not pay dues for the costs of arbitrations. Still, the majority warned that major distinctions between union members and those who do not pay dues (e.g., in contract negotiations) were likely unconstitutional.
The majority felt unconstrained by stare decisis because of the reasons above and because, it argued, there is now more data about public-sector collective bargaining than there was at the time of Abood, when the first public-sector labor law was fifteen years old. This was an interesting assertion to make in a case with no factual record below.
Justice Kagan’s dissent, joined by Justices Breyer, Ginsburg, and Sotomayor, would have applied stare decisis because Abood had worked well in practice, matched the Court’s approach to the First Amendment rights of public employees generally, and is deeply entrenched in law and reality. Per Abood, employers receive significant benefits from bargaining with an exclusive representative (e.g., not having to deal with multiple unions). This system, in turn, requires unions to have adequate funding to avoid being decimated by free riders. The issue, the dissent argued, is whether unions will be able to be effective negotiating partners, not whether they want to be.
The dissent stressed the individual employee speech cases, noting that government employers have substantial latitude to regulate employee speech, including the rule that the First Amendment does not protect speech relating to conditions of employment. It rejected the majority’s “special rule” for union speech, noting there has been no exception giving protection to speech involving policies that apply to groups of employees. Further, the inquiry should not be whether the public is interested in public employee speech, but rather whether the speech was about and directed to the workplace. The dissent also raised challenging hypos involving groups of non-union employees agitating for better benefits. It is now unclear whether such groups would be engaged in protected speech. Finally, the dissent maintained that even if union speech is a matter of public concern, under the balancing test, the employer’s interests should prevail.
The dissent concluded: “the majority has chosen the winners by turning the First Amendment into a sword and using it against workaday economic and regulatory policy.”
Janus will significantly diminish union resources. Estimates of membership loss range
from 8.5% -30%, with public safety and urban union members less likely to resign, and rural and lower-paid employees most likely. This will hurt the ability of unions to represent workers. While Janus only applies to public employees, because they constitute nearly half of all U.S. union members, it will hurt the entire labor movement. It will also hurt the Democratic Party. Where “right to work” rules have been implemented, the share of Democratic votes drops 3.5%. Professor Joseph McCartin argues the decision will damage democracy itself.
Blue states may adjust some DFR rules. New York recently amended its statute to allow union contracts to require those who do not pay dues to pay for their representation at arbitrations. This law and a California law require employers to give unions additional access to employees to make their pitch. The New York Times, citing Professor Benjamin Sachs, argues that public employers should be required to reimburse unions for bargaining costs. Hawaii HB923 would do that. Unions promise to redouble efforts at internal organizing. But this decision will do lasting damage.
Joseph Slater, the Eugene N. Balk Professor of Law and Values at the University of Toledo College of Law, is a member of the Labor Law Group and the College of Labor and Employment Lawyers and has published a number of books on labor law including, most recently, Public Sector Employment: Cases and Materials (with Martin Malin, Ann Hodges, and Jeffrey Hirsch).
Suggested citation: Janus’ Lasting Damage, JURIST – Academic Commentary, Jun. 29, 2018, https://www.jurist.org/commentary/2018/06/joseph-slater-impact-janus.
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