Connect with us

Judging Janus

Unions Get Ready to Fasten Their Seatbelts After ‘Janus’

According to Seattle University law professor Charlotte Garden, today’s Supreme Court decision won’t be the end of the legal assault on the public-sector labor movement.

Bill Raden

Published

 

on

Illustration: Define Urban

“The most surprising thing was the court’s signaling that it might not be done with big decisions that affect how public-sector unions can be organized.”


 

In what could be the worst setback to workers’ rights since 1947’s Taft-Hartley Act, the U.S. Supreme Court on Wednesday dealt a potentially crippling blow to the nation’s public-sector unions in Janus v. AFSCME. The 5-4 decision struck down Abood v. Detroit Board of Education, the 41-year-old precedent that has allowed public-sector unions to require all employees at a workplace to equally bear the costs of collective bargaining through “agency” or “fair share” fees.

The National Right to Work Legal Defense Fund, on behalf of Mark Janus, a child support specialist employed by the state of Illinois, argued that forcing workers to help pay for even the nonpolitical administrative costs of collective bargaining operations infringes on their First Amendment right to freedom of speech.

The court agreed. Writing for the conservative majority, Justice Samuel Alito said that the agency fee arrangement “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

At issue now are laws in 22 states that allow fair share fees, as well as employment contracts and a host of workplace rules covering nearly eight million unionized public-sector workers. But the ruling’s crushing financial impact to unions will curtail their ability to lobby and support worker-friendly candidates, who are predominately Democrats.

According to Seattle University associate professor of law Charlotte Garden, today’s court decision won’t be the end of the legal assault on the public-sector labor movement. Capital & Main spoke by phone with Garden in an interview that has been edited for concision and clarity.


Capital & Main: What is the biggest threat to labor from today’s decision?

Charlotte Garden: This decision will have vicious-cycle effects on unions in two ways. One is just the microeconomics: If you’re a worker that’s represented by a union, you now have an economic incentive to opt out of paying dues, even if you like the service you get from your union and value it. Workers who remain members and are still paying may increasingly feel that they are being overburdened by the cost of paying for their free-riding coworkers and then decide themselves to opt out of paying for representation. And so the cycle goes.

On a more macro level, we could easily see this decision contribute to the election of politicians who will reduce the scope of public-sector or private-sector bargaining rights through the legislative process. There’s research showing that right-to-work laws depress Democratic vote share, and so today’s decision can have the potential to harm the ability of working people to elect candidates that will enact policies beneficial to them.

Did the decision surprise you?

The most surprising thing was the court’s signaling that it might not be done with big decisions that affect how public-sector unions can be organized. The court seemed to indicate that it was open to a challenge to exclusive representation, which is the system that is used in the private-sector and in the entire public-sector with the sole exception of teachers in Tennessee.

Doesn’t the decision also open up the possibility that employees within a public-sector workplace could begin suing government employers outside the union, over, say, better benefits or other workplace issues?

Yes — it could well be the case that if a public employer tried to fire or discipline teachers or other public employees that engaged in a walkout or some other collective action, that those teachers would have a much stronger First Amendment defense than they would have had before today’s decision. That raises the question of how consistently the decision is going to be applied, but I agree the argument is there.

In her blistering dissent, Justice Elena  Kagan predicted that overturning Abood would cause real-world chaos for the laws and worker contracts based on Abood. Is that a genuine fear?

I think it is. Justice Kagan points out that in a worst-case scenario — in a contract that doesn’t have a severability clause — this might mean going back to the drawing board on the entire contract. So certainly unions and public employers are facing some turbulent times as they try to grapple with those fallouts of today’s decisions.

There are current court cases that challenge other aspects of public-sector collective bargaining. Here in California, they include Yohn v. CTA, which also targets exclusive representation. Are there other significant anti-labor cases that we should be aware of?

We should expect attacks. States are taking [steps] in response to Janus, doing things like allowing unions to put on orientations for new workers — New York [has] adjusted the scope of the duty of fair representation as applied to nonmembers. I would expect cases challenging all of those innovations on First Amendment grounds.

A former Texas solicitor general who, like most of the conservative majority, is also a member of the right-wing Federalist Society, just brought class action suits in California and four other states, asking for the recovery of all agency fees already paid by dissenters. Does a case like that stand a chance because of Janus?

We have a bit of precedent here. There were a number of lawsuits trying to recover back-dues from before the day Harris v. Quinn was decided, and those cases lost. And so I think it’s likely the same thing will happen here — unions won’t be on the hook for agency fees that they collected before today’s ruling.

How much of Janus is rooted in ideology rather than law? Has something fundamental shifted since the court decided Abood?

It’s undeniable that ideology plays a role in law. One thing is that a Republican president will appoint Supreme Court justices who see law in a way that is favorable to Republicans, and so you’ll get this kind of Balkanization of the judiciary. And then another way that plays out is the kind of attitudes or the receptiveness of different justices to some of the fundamental premises in a case like this.

When looking at the way this conservative court majority has flexed the First Amendment to choke the collective voice of public employees, one can’t help but see it in the light of its 2010 Citizens United decision, which has had a similar partisan political impact. Is that a fair comparison?

Your point about Citizens United is a really apt one. Citizens United freed corporations and unions to participate in politics in this very unbridled way, except that there were already restrictions in place on what money the unions could spend in politics, because of the rule from Abood. Now there’s no equivalent rule for corporations restricting their ability to spend, say, shareholder value when shareholders object. So the supposed parity between unions and corporations in Citizens United was always sort of illusory, and now even more so, because unions are going to have to spend dues money paid by members to fund the representation of free riders instead of other things, including participating in politics.


Copyright Capital & Main

Top Stories