At the end of June the Supreme Court dropped its expected ruling in Janus v. AFSCME which garnered minimal discussion in mainstream press despite likely having an enormous impact on our political system and many employees. Janus is in many ways a demonstration of the cumulative effect of the past twenty years of right wing politics in this county and its continued war on labor unions.
Although the case mostly flew under the radar for most of the nation’s press, labor law observers have paid close attention and mostly uniformly predicted the Court’s conclusion. Let’s talk about the labor law issue involved and what impact the case will likely have for Colorado and its employees.
(I delayed writing about this case with the holiday but you can find earlier coverage on the topic here, here, here, here, here, here and here.)
Labor law and agency fees
The issue in Janus involves state laws requiring employees of a public employer (such as the City and County of Denver, or a Colorado school district) who are part of a bargained unit but not union members to pay partial fees for the benefits received from the union’s bargaining activity. Let’s break this down.
Union representation: right to work vs. closed shop laws
Under federal labor law, employees in covered employers can elect a union to represent the workforce as a unit to bargain over the conditions and benefits of employment. Labor law defines groups of employees eligible for representation by a single representative union as a bargained unit. These are employees who share work duties for which it makes sense to have a single representative.
For example, all teachers in a school district might be a bargained unit or the machinists in a manufacturing shop might be a unit while the office staff is a separate unit. If the employees within the unit vote in favor of union representation then the union represents all employees within the unit–even if all employees do not voluntarily join the union.
States handle this aspect in a couple ways. In supposed “right to work” states employees do not have to join the union or pay union dues even if the union represents them and the employees receive all the benefits of the collective bargaining agreement struck by the union and employer. In “closed shop” states the employees within a bargained unit must be dues-paying members of the union.
Although this can seem unfair, keep in mind that employees receive the benefits of the union’s bargaining of the CBA plus continued representation when issues arise under the agreement. The union has no choice under the NLRA but to represent all employees. So either state law requires the employees to pay for the benefits received from the union or the union eats the cost of helping its dues-paying members.
Right to work laws and agency fees
As a compromise solution in right to work states, unions can charge non-members within their bargained units agency fees. Agency fees are a reduced payment from full dues paid by non-union employees in the bargained unit to cover the costs incurred by the union for work performed on behalf of the non-members.
Payment of agency fees means the union receives at least compensation for work performed but does not collect full dues that might also be used for other union purposes such as lobbying for employee-friendly laws or campaigning in representation elections in other bargaining units. These agency fees are at issue in Janus.
The Supreme Court first approved the use of agency fees in public employment in Abood v. Detroit Board of Education in 1977, which itself draws from case law twenty years earlier holding the same position under the Railway Labor Act. A series of cases since that time confirmed their constitutionality in light of the First Amendment.
Writing in an opinion years later, Justice Alito questioned the constitutionality of the agency fees, signaling to right wing allies that it might be a good time to raise a new suit challenging them.
Janus is an employee of a state agency in Illinois who worked in a bargained unit and paid agency fees under state law. With the backing of right-wing and anti-union groups, Janus filed suit to avoid payment of agency fees. The primary thrust of the lawsuit alleged the agency fees violated Janus’s First Amendment rights because the state law requiring agency fees is a government action requiring him to give money to a group that takes political action against his particular views.
In other words, it is compelled speech. The lawsuit alleged that there is no way to really distinguish between how the union uses money collected from agency fees and union dues so he is forced by state law through his public employment to finance the union’s other political activities.
The lawsuit further alleged the agency fee issue is a matter of importance that rises to a First Amendment issue because the union’s bargaining is a matter of public importance. When unions bargain on behalf of public employees the union affects government decision-making and financing; therefore, the issue of agency fees is one of public concern and rises to the significance of speech protected by the First Amendment.
Supreme Court weighs in, overruling Abood
With a conservative majority, labor law observers expected the Supreme Court to overrule Abood and strike down agency fee laws, which is exactly what the Court did. The Janus majority opinion reads as a barely disguised criticism of public unions and sets up what is the beginning of a broader attack on unions under the First Amendment. The conservative majority on the bench have spent the past six years inching towards this position and finally get their win.
The majority casually overrules forty years of precedent with merely a handwaiving towards any concern about stare decisis. The bulk of Justice Alito’s majority opinion is spent making equally casual dismissals of Abood‘s reasoning and a union’s legal duty to represent non-members without payment of fair-share fees.
The bulk of the majority opinion relies on this chain of thinking:
- The First Amendment protects an individual from compelled speech on behalf of ideas with which the individual disagrees;
- Matters involving public employee compensation are budgetary issues and therefore significant enough that activity involving them implicate First Amendment protections;
- Agency fees contribute to the union’s speech on those issues;
- If the individual disagrees with the union’s position or tactics then the individual is compelled to support disagreeable political speech;
- There is an “‘exacting’ standard” to analyze whether a law compelling speech violates the First Amendment;
- Now casually dismiss all the reasons why agency fees might not violate the First Amendment.
Justice Kagan’s dissent dismantles the house of cards constructed by the majority to explain why Abood must be overruled; but its strength lies in attacking why claiming state budgets are federal constitutional issues is a ridiculous standard. Justice Kagan correctly points out that if public employment budget issues elevate agency fees to First Amendment protections then the same would have to be true for any other public employment budget issue.
Any time an employee or group of employees raise compensation or workplace issues and suffer criticism or discipline (real or perceived) the employees could launch First Amendment lawsuits which will cause financial harm to states and interfere with their ability to act as employers–inconsistent with decades of other Supreme Court precedent.
Or–what will inevitably happen–the reactionary majority will carve out a union-only rule that only attacks unions.
The political impact of Janus
It’s hard to consider Janus anything more than a political favor to conservative political forces. The majority asserts one reason why the agency fee issue is of political importance is that states and cities are experiencing budgetary shortfalls for which public employee benefits are a significant issue.
Although true, the vulnerability of public employees to budgetary issues is one reason why public employees and their unions have become important to protecting their own jobs. The drive to undermine public employee benefits and wages has led to greater growth in the importance and activity of public unions.
The divide between political forces seeking to cut public employee compensation and public unions is blatantly partisan. One only needs to look at the standoff only a few years ago between Wisconsin Governor Scott Walker and the state teacher’s union for the most visible example. By drawing funding away from the unions the Supreme Court majority puts its thumb on the scales for their political allies.
The reach of Janus is not just political for public unions. Diminishing the power and visibility of public unions will have the same effect on private employer unions. It will diminish resources available for other union fights like raising minimum wage and protecting employee benefits. Disabling public unions will allow politicians to cut state agency employment which in turn will make regulatory enforcement of important laws less effective. It will also allow them to cut public employee pay and benefits which in turn will lower compensation across all employers. In short, this is bad for employees everywhere.
Janus is another step forward for the reactionary Court majority which uses the First Amendment as a tool to rollback democratic forces in the country. The majority took its first big step with Citizens United–equating money with speech–and extends that forward here with Janus. We will likely continue to see the Supreme Court use the First Amendment as a tool to dismantle public accountability in the political system and further dismantle opposition to right wing political forces.
The effect on unions from Janus
The larger effect for unions is equally as obvious. Public unions in states with agency fee laws will lose out on not just immediate funding from the agency fees. The absence of any fees to receive the benefits of representation without paying a fair share for it will entice free riding and further reduce the union’s dues-paying membership. As a result, the ability for unions to successfully represent and lobby for working people will decline.
Although this suit deals directly with public union issues, the majority’s First Amendment analysis is so broad that it calls into question significant private employer issues under the National Labor Relations Act (NLRA) involving the federal law’s requirement for employees to pay agency fees under the same premise. The majority is, at least, signaling to private employers and their allies to take a shot at whittling away at private unions as well.
Observers on both sides of the issue have asserted unions will have to work harder to be accountable to their members and do a better job pitching why employees in bargained units why their should join the union. Although true, this is hardly a solution to the political and labor scale-tipping provided by the Supreme Court.
Unions certainly could do a better job in many instances but in practice this does not happen and in a union-hostile environment it’s not always easy to sway people to pay dues when they can get many of the benefits for free. We certainly see that in right to work states where union membership is low.
Moreover, the Janus decision sets up decades of undermining unions which will hardly be met by more persuasion in the workplace.
A proper reaction to Janus should be for unions to give priority to due-paying members only. I’d prefer it to be via legislation that declares a Local may favor dues-payers and is not obligated to equally serve free riders in a bargaining unit. A union may render assistance to a free rider only if it believes there is an opportunity to advance the union’s power in other areas. But, there ought to be no implied or stipulated obligation.