Anti-Labor Forces Seek To Use Janus Ruling To End Exclusive Representation
GREGG MCLEAN ADAM
Messing Adam & Jasmine LLP
We have previously reported on the U.S. Supreme Court’s June decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31. There, a 5-4 majority of the conservative justices on the court, led by Justice Samuel Alito and joined by President Trump appointees Neil Gorsuch and Brett Kavanagh, overturned 40 years of precedent in ruling that no members of a union can free ride on the coattails of dues-paying members. The decision was cloaked in First Amendment rationale — but just seven years after the court’s Citizens United v. FEC decision permitted unlimited expenditures by corporations in elections, it smacked of a political smackdown of labor unions and their engagement in the political process.
By some estimates, Janus reduced public employee unions’ coffers by almost $3 billion
Now, anti-union advocates are doubling down. Petitioning the U.S. Supreme Court to hear post-Janus actions, they seek to use the ruling in Janus to prohibit states from designating “exclusive bargaining representatives” under collective bargaining laws.
What does this mean? It means that, for example, just because Myhometown POA was the preferred bargaining agent for a majority of the cops who worked for that police department, a different group of employees would not be stopped from having a different bargaining agent at the table. In other words, if these new judicial challenges are successful, multiple unions and perhaps even individual employees could demand a seat at the bargaining table. Rather than the workable bilateral process that we have all become accustomed to, collective bargaining could descend into some unglorified free-for-all.
All of this is, by design, intended to undermine organized labor in the public sector
In one of these post-Janus suits, Kathleen Uradnik v. Inter Faculty Organization, Uradnik, a Minnesota state college professor, argues that state law forcing her — a non-member of the union — to be bound by the actions of the exclusive bargaining agent as it negotiates on her behalf is a form of compelled speech and association that violates the First Amendment.
A federal district court and the Eighth Circuit Court of Appeals rejected her argument and upheld the legality of exclusive representation. But with the perceived tailwind of Janus, she is petitioning the U.S. Supreme Court to take on her case. The same is true in Theresa Bierman, et al. v. Tim Waltz, Governor of Minnesota, where the arguments are virtually identical to those in Uradnik. The union’s response in Uradnik and the state of Minnesota’s response in Bierman to the petitions are due in March, after which the high court will decide whether to grant review. If review is granted, start worrying.
By pulling the plug on exclusive representation, the conservative advocacy groups funding Uradnik, Bierman and similar cases aim to put organized labor on life support.
Required exclusive representation is a cornerstone of the labor movement. One union speaking for all employees in the bargaining unit, whether it be to negotiate a new contract or to influence policy through meet and confer and the grievance process, fosters unity among employees and strengthens their collective voice. The repeal of laws protecting exclusive representation would cause this singular voice to be drowned out by a cacophony of voices as multiple employee groups would represent different factions within a bargaining unit and ultimately compete for concessions from their employer. Employers would naturally take advantage of these differences and play these different groups against each other to secure anti-labor terms in contracts.
The plaintiffs in Uradnik and Bierman rely on Janus to make their case. In Janus, the Supreme Court ruled that unions’ collection of “fair share fees” or “agency fees” from non-members violate these employees’ First Amendment rights. The court reasoned that the First Amendment protects individual employees from being required to “subsidize” any union activity whatsoever because such activity is inherently political. This principle provides the framework to attack exclusive representation in Bierman and Uradnik. In Bierman, the plaintiffs in their petition to the court analogize a union’s function as an exclusive representative to “lobbying” and asserts, “Bluntly stated, Minnesota is forcing certain citizens to accept a government-appointed lobbyist.” Uradnik states in her petition that it would be a “striking anomaly” if public workers are no longer compelled to pay “agency fees” (and thus subsidize union speech) but are still forced to accept that union speech, which they may not support or may even oppose, shall serve as their own. She further emphasizes that “… if Janus stands for anything, it is that there is no labor-relations exception to the First Amendment.”
These arguments are short-sighted. It is lost on these plaintiffs that exclusive representation of groups is a fundamental component of our democracy. Congressional representatives exclusively represent their districts even though a multitude voted against them. And government employers sitting on the opposite side of the bargaining table from unions enjoy uncontested exclusive representation of management.
Exclusive representation at the bargaining table also serves a vital government interest that outweighs any impingement on non-union members’ rights to free speech and free association. Collective bargaining fosters “labor peace.” Business interests understood that labor laws that enable collective bargaining were preferable to workers continuously striking and taking to the streets, which in the past often resulted in violence. Even Justice Alito, the author of the Janus opinion, gave credence to “labor peace” in his opinion on behalf of the court’s majority. Speaking in regard to the pre-Janus world before the court struck down “agency fees” as unconstitutional, he noted that in those jurisdictions where “fair share” fees were not required, there were few breaches of “labor peace” as unions were still serving well as the effective exclusive representatives for workers. He therefore pointed to the continued existence of exclusive representation, without the collection of “agency fees,” as a constitutionally sound means to further the government’s interest in “labor peace.”
Although the Supreme Court has yet to decide whether it will even consider these cases, we are certain that the fight from anti-union activists will continue, be it against exclusive representation or other facets of organized labor. We urge all union leaders to be in contact with their counsel and their membership to remain vigilant and prepare to press forward in the face of any eventuality. The result in Janus has yet to break the back of labor. On the contrary, signs point to a renewed vigor among labor forces to strengthen their solidarity and adapt to changing conditions. We need to show the same fortitude if the Supreme Court takes on Uradnik, Bierman or a similar case.
About the Authors
Gregg Adam and Matthew Taylor of Messing Adam & Jasmine LLP are PORAC-LDF panel attorneys. In 2015, after practicing at Carroll, Burdick & McDonough for many decades, Gregg and his partners, panel attorneys Gary Messing and Jason Jasmine, formed a new law firm predominately representing public safety unions and their members in their labor relations. Gregg has spent his career advocating on behalf of tens of thousands of public employees. He has formidable litigation experience from having argued extensively in state and federal court, including the United States Supreme Court. Matthew Taylor is an associate at the firm specializing in public sector labor law and who served as a police officer and investigator in New York City.