Employment Law Daily Reaction is swift to Supreme Court’s Janus decision
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Monday, July 2, 2018

Reaction is swift to Supreme Court’s Janus decision

By Lisa Milam-Perez, J.D.

On Wednesday, June 27, the U.S. Supreme Court issued its highly anticipated decision in Janus v. AFSCME, barring unions from imposing agency fees on public employees who are not union members, and overturning High Court precedent that had persisted for four decades: its 1977 decision in Abood v. Detroit Board of Education, which found that levying “agency” fees to cover a union’s costs of collective bargaining, and other activities which advantaged members and nonmembers alike, did not unduly intrude upon the rights of nonmembers.

Winners and losers. The outcome, handed down in a sharply divided 5-4 decision, surprised no one. With the writing seemingly on the wall, organized labor was primed, rolling out a social media blitz within minutes of the decision. Unions struck a defiant tone: photos of proud members hoisted “UNION” signs on Twitter. “No Court Decision Can Stop Us,” an email blast from the SEIU pronounced. The brave front notwithstanding, the decision is an undisputedly critical blow to public employee unions—and to the labor movement as a whole—which now must redouble its efforts to bring new dues-paying members into the fold. And it will have to do so with union organizing coffers precipitously diminished.

“Unions will always be the most effective force and vehicle to propel working people into the middle class,” said Lee Saunders, AFSCME president, optimistic in defeat. “Despite this unprecedented and nefarious political attack—designed to further rig the rules against working people—nothing changes the fact that America needs unions now more than ever. We are more resolved than ever to fight like hell to win for our members and the communities they care so much about.”

With equal urgency, the architects of the Abood takedown took a victory lap. “The right to say ‘no’ to a union is just as important as the right to say ‘yes,’” said Mark Janus, an Illinois child support agency employee and the plaintiff in the case. (Illinois is among 22 states that permit unions to assess agency fees for their efforts.) “Finally our rights have been restored,” he said, relieved now of paying mandatory fees to a union he does not support, but which is legally required to bargain on his behalf. And the National Right to Work Legal Defense Foundation, one of the anti-union organizations representing the plaintiff, called the decision “a major victory for First Amendment rights” for some five million public employees across the country.

“The Court recognized that unions have the right to organize and to advocate for the policies they believe in,” said Jacob Huebert, an attorney with Liberty Justice Center, also instrumental in the plaintiff’s win, “but they don’t have a special right to force people to pay for their lobbying. They have to play by the same rules as everyone else.”

An “attack” on public workers. As the AFL-CIO sees it, “a bare majority of the court, over the vigorous dissent of four justices, has conceded to the dark web of corporations and wealthy donors who wish to take away the freedoms of working people. Until it is overturned, this decision will be a political stain on what is intended to be the most honorable, independent body in the world. But more importantly, it will further empower the corporate elites in their efforts to thwart the aspirations of millions of working people standing together for a better life.”

“In a radical decision upending decades of established law, five justices on the Supreme Court have now held that public employers and the unions their employees form may not require non-union workers to contribute a ‘fair share fee’ to help defray costs the unions incur for bargaining and representing all members of the bargaining unit—even though these non-union workers receive all the benefits and protections their co-workers negotiate,” added Christine Owens, Executive Director of the National Employment Law Project (NELP). NELP represented 28 fair-share fee payers—current and former home care workers in the state—in an amicus brief filed in the case.

“This decision not only threatens to roil public-sector labor relations in the 22 states that have adopted fair-share arrangements, it also challenges the ability of 17 million workers in public-sector unions—teachers, nurses, police officers, firefighters, and many others—to act collectively to win higher wages, better working conditions, safer workplaces, and stronger health and retirement security,” Owen continued. “Public employers’ ability to partner with their workers’ unions to improve public services like education, home care, police, and firefighting also is put at risk. Governors and state legislators across the country have lauded the retention of skilled workers and enhanced public services for communities when workers’ unions and the state governments join together. Collective action benefits not only union members but non-union workers and the entire community, helping to raise workplace standards for everyone at a time when families’ economic security and mobility are being sorely challenged.”

Women of color to bear the brunt? In an amicus brief in the case, the Lawyers’ Committee for Civil Rights Under Law, along with the National Women’s Law Center and the Leadership Conference on Civil and Human Rights, had stressed the importance of unions as one of the most effective vehicles to move people into the middle class, especially for women and people of color. Consequently, “the weakening of public sector unions disproportionately impacts workers of color,” the organization contended, rebuking the Supreme Court decision.

In 2016, African-American men had the highest general union representation rate, followed by African-American women, who make up one in every six public-sector workers. Union-represented African-American workers—regardless of union membership status—had significantly higher median weekly earnings ($807 for represented members and $808 for union members) than their nonunion counterparts ($646), according to the Lawyer’s Committee. “Losing access to public employment’s path to the middle class will only exacerbate longstanding inequities that workers of color experience: more than half of African-American workers and nearly 60 percent of Latinx workers are paid less than $15 per hour.”

Congress reacts. “The Supreme Court’s ruling that millions of public sector employees will no longer have to financially support an organization they disagree with, just to keep their jobs, is a victory for free speech and a victory for the American workforce,” Virginia Foxx (R-N.C.), Chair of the House Committee on Education and the Workforce, and Tim Walberg (R-Mich.), who chairs the Subcommittee on Health, Employment, Labor, and Pensions, said in a joint statement. “We welcome this ruling as affirmation of one of the most fundamental American values.”

By contrast, the reaction from Bobby Scott (D-Va.), the committee’s ranking member, was sharply critical. “Using the First Amendment as a weapon, the Court has effectively required unions to provide an array of services to non-union members, while simultaneously prohibiting unions from charging a fee for those services,” Scott wrote. “As Justice Kagan wrote in her dissent, the majority overturned established precedent, ‘for no exceptional or special reason, but because it never liked the decision…it wanted to pick the winning side in what should be—and until now, has been—an energetic policy debate.’”

“For more than a century, unions have organized to lift up the voices of workers who were otherwise unheard, and fought for fair pay, safer working conditions, and better benefits. Unions helped create the 40 hour workweek, workplace health and safety rules, child labor protections, and strengthen the middle class—and unions are still empowering workers in cities and states nationwide,” added Senator Patty Murray (D-Wash.), ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee. “I and other Democrats will continue to stand up for workers and their right to be treated fairly on the job, and I urge all Republicans in Congress who claim to care about the economic security of the middle class to work with us to strengthen the rights of workers.” (HELP Committee Chair Lamar Alexander (R-Tenn.) was mum on today’s decision as of press time).

Impact on public employers? What impact will the Janus decision have on federal, state, or local government employers? “I don’t think it matters to public employers as much as it matters to dissenting employees who do not want to pay union fees—even when they are concededly getting collective bargaining and grievance processing services from the union under current exclusive representation rules,” said Paul Secunda, a professor of law at Marquette University and director of its Labor and Employment Law Program. “I guess public employers could argue that unions cost more taxpayer money and thus, have less money for other public expenditures. But that seems to be short-sighted, as employees who are treated with respect and dignity are more productive and happy, and give the government more value for the tax money they spend on them.”

Public employers will surely feel the impact of Janus, though, in the form of more aggressive organizing efforts by unions increasingly pressured to sign up new dues-paying members. And, as a practical matter, public employers will face new bargaining pressures as a result of the High Court’s ruling. “Since it is very common for public sector collective bargaining agreements to contain agency fee dues deduction provisions, provisions which have now been invalidated by the Court, public sector employers are likely to be presented with demands to bargain over the impact or effect of the invalidation of those provisions,” said Mark W. Bennett, a partner in the Chicago firm Laner Muchin, who represents both public-sector and private employers in traditional labor matters.

“Even prior to the issuance of today’s opinion, I have seen numerous examples of proposals put forth by the public sector unions seeking to limit the impact of the anticipated Janus decision,” Bennett said. “Those proposals have included: requesting that the employers refrain from discussing the impact of Janus directly with their employees; restricting the public employer’s ability to disclose information regarding bargaining unit members to outside third parties as a way to limit access to the employees from anti-union groups; and/or preventing an employer from honoring an employee’s request to revoke dues deductions unless the request is made in accordance with the union’s own sometimes burdensome procedures.

“Each public employer is going to have to approach such demands to bargain on a case-by-case basis, given their own labor relation strategies and any obligations they may have in savings clauses contained within their collective bargaining agreements,” he added.

“The one constant, however, would be that as a result of today’s decision, to the extent public employers have public employees that are agency fee or nonunion members, they should no longer make such deductions,” Bennett advised. “Further, if employers do communicate directly with their employees regarding today’s decision, the employer should ensure that such communication is consistent with its obligations under the appropriate Labor Act.” (For public workers, state labor laws, rather than the NLRA, typically control).

Nonmember fee for services? Bennett said he was not surprised by the ultimate holding that forced agency fees violate the First Amendment rights of nonunion member public sector employees, but “I was surprised to see the Court embrace the concept that unions could require individual nonmembers to pay for services or be denied union representation altogether. This is an approach that, in anticipation of the Janus decision, some state legislatures have already adopted. Such an approach could lead to additional confusion and litigation regarding the fees charged for such services as compared to the amount of dues unions charge to their full members.”

“In other words,” he explained, “if a union member is required to pay $600 a year for full membership and is entitled to the full range of services the union offers without additional charge, how much then may the union charge its nonmembers for the processing of a single grievance? What standards would the labor boards or courts apply? Would the charge need to be a proportionate share of the full membership dues? Can it be an amount greater than the full membership dues? Would charging a greater fee run afoul of the statutory obligations not to discriminate against an individual on the basis of union membership?”

State legislatures to respond? “While this victory represents a massive step forward in the fight to protect American workers from forced unionism, that fight is far from over,” warned Mark Mix, president of the National Right to Work Legal Defense Foundation, which continues to lead the anti-union cause. “Union officials and their allies in state government have already taken steps to prevent workers from exercising their rights under the Janus decision, while millions of private sector workers in states without Right to Work protections are still forced to pay union fees or else be fired.”

New York approach. Indeed, as Secunda notes, “states are passing members-only legislation that will allow unions to provide services only to employees that pay union dues.” Case in point: In anticipation of the Janus decision, New York Governor Andrew Cuomo on April 12 signed legislation to protect union membership in the state’s public-sector workplaces, and adding safeguards “against federal government actions that would undermine organized labor.”

New York Senate Bill 7509 addresses the so-called “free-rider” problem—unions compelled to serve nonmembers for free—among other measures. Specifically, the law provides that a union’s duty of fair representation to a public employee whom it represents “but who is not a member of the employee organization is limited to the negotiation or enforcement of the terms of an agreement with the public employer. An employee organization will not be required to represent a nonmember during questioning by the employer (i.e. provide “Weingarten rights,” in labor-law parlance), in statutory or administrative proceedings or to enforce statutory or regulatory rights, or in any stage of a grievance, arbitration, or other contractual process concerning the evaluation or discipline of a public employee where the nonmember is permitted to proceed without the union and be represented by his or her own advocate. The legislation also provides that unions would be allowed to provide enhanced services to its dues-paying members, in the form of legal, economic, or job-related benefits or support. Among other union advantages, the legislation also gives unions a heads-up when a new employee comes on board, and an opportunity for an organizer to meet with the new employee within 30 days.

“Too often, and at the hands of this federal administration, we are seeing the labor movement going backwards,” Governor Cuomo said. “In New York it is a different story, and our efforts to protect working men and women are moving labor forward, making the workplace fairer and more just than ever before.” Secunda anticipates more of the same from labor-friendly legislatures in other states.

The end of unions—or a reenergized labor movement? So, will the Janus decision be the death knell for organized labor (and wasn’t that the goal all along—ask the cynics, who view the asserted “free speech” motives behind the “right to work” movement with skepticism)? Indeed, notes Ogletree Deakins’ C. Thomas Davis in a blog post: “The outcome of Janus v. AFSCME could go a long way to determining the future financial viability of public sector unions to engage in lobbying and politics outside the confines of collective bargaining and contract administration, including grievance handling.”

“Faced with an inability to compel union dues of any variety in the public sector, coupled with the potential for yet another state joining the right-to-work movement, many unions must now contemplate the sustainability of their revenue streams,” his Ogletree colleagues Robert W. Stewart and Harrison C. Kuntz blogged separately. “The inability to compel dues payments from large swaths of otherwise unwilling workers will inevitably leave a major dent in the unions’ balance sheets. Those consequences, in turn, could result in fewer organizing campaigns and arbitrations, less robust political advocacy, and more cooperative approaches overall. On the other hand, unions will face more pressure to convince workers to voluntarily pay dues, whether by highlighting the purported benefits of unionism, or through social pressure against “free riding.” The bottom line, in their view: “Regardless of the labor movement’s practical responses, the summer of 2018 already represents the lowest point for union security since Taft-Hartley’s enactment in 1947.”

Janus makes it more difficult for unions to fund their operations and provide services to members,” Secunda conceded, and “unions that have to spend all their time collecting dues and not providing services to members are going to be in trouble.” However, echoing the bravado of union leadership in the face of today’s stinging loss, Secunda remains bullish on organized labor.

“Unions aren’t going anywhere,” he said. “Labor has been more harshly attacked historically and always manages to survive. Labor will place more emphasis on passing legislation in blue states that will make Janus less harmful to public sector unions and on putting more resources into grass-roots organizing.”

“Here’s the thing: America is heading in a different direction,” the AFL-CIO urged in a press statement. “All over the country, workers are organizing and taking collective action as we haven’t seen in years. More than 14,000 workers recently formed or joined unions in just a single week. This followed a year where 262,000 workers organized and the approval rating of unions reached a nearly 14-year high. Working families know the best way to get a raise, better benefits and a voice on the job is through a union contract. The corporate narrative of the labor movement’s downfall is being dismantled by working people every single day. We have never depended on any politician or judge to decide our fate and we aren’t about to start now.”

A political decision? The conventional wisdom on the left, of course, is that the attack on organized labor is a thinly veiled attempt to crush the Democratic Party’s most reliable donor base. Perhaps cash-strapped unions will, by necessity, have to rein in their political contributions. Secunda expects that, “rather than lobbying non-union politicians to vote for union issues, more union-oriented politicians will be elected who won’t have to be lobbied.” (As evidence, he pointed to the stunning upset in the Democratic primary a day earlier, where political newcomer Alexandria Ocasio-Cortez, a Democratic Socialist and union advocate, handily toppled 10-term incumbent Rep. Joe Crowley—an aspiring House Speaker—for the party’s 14th congressional district nomination).

“I do think organizing, and aggressive organizing at the grass-roots will become essential to unions who can no longer just depend on requiring dues from all members they represent,” Secunda said. “I think strong, well-organized unions will organize more employees and will be less dependent on these mandatory union dues.”

For his part, AFSCME’s Lee Saunders promised: “The American labor movement lives on, and we’re going to be there every day, fighting hard for all working people, our freedoms and for our country.”

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