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Janus v. AFSCME: Taking Their Best Shot and Still Standing

Posted on Wednesday, August 01, 2018 at 12:00AM

GARY MESSING
Founding Partner
GREGG ADAM
Founding Partner
YONATAN MOSKOWITZ
Attorney
Messing Adam & Jasmine LLP
In a majority opinion by Justice Samuel Alito, the U.S. Supreme Court ruled in Janus v. American Federation of State, County, and Municipal Employees, Council 31 that “fair-share fees” or “agency fees” are unconstitutional violations of the First Amendment. As we predicted in our March article in these pages, the long knives finally caught up to the Supreme Court’s earlier 1977 decision, Abood v. Detroit Board of Education. Our firm, along with the Stanford Law School Supreme Court Litigation Clinic, organized an amicus brief in support of the respondent union in the case, AFSCME, on behalf of PORAC and a coalition of 14 other public safety unions and associations representing approximately 500,000 individuals.
The decision came down on June 27, 2018, the last day of the U.S. Supreme Court’s 2017–2018 term, and the same day Justice Anthony Kennedy announced his retirement.
In Janus, the court set aside the value of leaving settled precedent alone and overruled the 41-year-old Abood, which had permitted unions to collect fair-share fees from non-members. These collections were calculated to reimburse the union for its costs in pursuing (legally mandated) activities of collective bargaining, managing grievances and ensuring that contractual terms favorable to employees were enforced — activities undertaken for all employees regardless of union membership. Non-members already had the right to opt out of paying for the union’s political activities, but the court held that this compromise was
insufficient, as fair-share fees still infringe on the First Amendment rights of non-members.
The court reasoned that the First Amendment protects employees from being required to “subsidize” any union activity whatsoever, because such activity is inherently political — it involves, for example, how much money will be spent on salary for public employees, how tenure rules work, which employees are rewarded for what reason and by which criteria tasks are distributed among workers. Justice Alito’s opinion views these inherently political union activities as “compelled” speech on matters of important public concern. “Compelled” speech is heavily disfavored, so the public policy the law was designed to further had to be very important.
According to Justice Alito’s opinion, it wasn’t. He rejected policy justifications for fair-share fees that had arisen since Abood, and focused exclusively on the two proposed governmental interests that had been put forward in Abood itself: promoting “labor peace” and avoiding the “free rider” problem.
With respect to the first, the court held that events since Abood have shown that fair-share fees are not necessary to achieve “labor peace.” “Labor peace” is essentially a conceptual basket that includes all of the negative, counterproductive consequences that can arise when labor unions compete against each other for the opportunity to represent individuals who make up a particular labor force. Justice Alito identified examples from the federal government and “right-to-work” states in which fair-share fees were not required, but very few breaches of labor peace arose. In those instances, he noted, unions were still serving well as the effective exclusive representatives for federal employees and many right-to-work state employees. Therefore, the court reasoned, there were less restrictive ways than fair-share fees to further the state’s interest in labor peace.
Regarding the second governmental interest, the court rejected the idea that the obvious “free rider” problem was a “compelling state interest,” as would be required under the relevant First Amendment analysis. This explicit rejection of any sort of “free rider” argument is significant, especially because the majority could easily have written an opinion that allowed states and local governments to more easily avoid a “vicious circle” of membership attrition (fewer members means they must contribute more to maintain union services at same level, increasing the marginal cost of being a union member, which increases attrition, which further increases dues, etc.). The opinion appears to foreclose even the potential for a legislature to pass, for example, a law giving employees the option of sending the entirety of the money deducted from their paycheck either to the union (as membership dues) or to a nonprofit of their choice.
Unions and state and local governments are already dealing with the immediate practical effects of this decision, which includes determining the exact division of responsibilities among unions, employers and members after a member indicates that they would like to begin the process of refusing to pay their dues. All union leaders should be in contact with their counsel and their employer representatives to negotiate a process that is legal, un-coerced and as union-friendly as possible. Most contracts have “savings” or “severability” clauses that give unions an opportunity to negotiate lawful replacement provisions.
Also, many unions’ existing maintenance-of-membership clauses will likely remain enforceable. These clauses, which have been found reasonable by reviewing courts, require members who voluntarily joined the union to remain members until a defined window period, which comes around either annually or at the end of the memorandum of understanding. However, as new hires attend employer orientations and memoranda of understanding come up for renewal, we expect unions to undertake a more active role in presenting to new employees and existing members alike the benefits of union membership.
So the door is slammed shut on fair-share fees. What happens now?
We regroup and fight back.
Unions all over the country are responding by recalculating their budgets, tightening their belts and demonstrating more aggressively to their members the value of membership.
In California, through Assembly Bill 119, the Legislature and governor have given unions the opportunity to present the value of their membership to new employees before the well is poisoned against them. These new laws (passed in preparation for the Janus decision) permit unions to attend new employee orientation in order to present their case for union membership directly, and restrict employers from communicating pro or con stances on union membership to employees. Other laws may be necessary to ensure that state and local government entities are sitting across the table from robust and strong negotiating partners.
California, given its rich history of supporting labor organizing, is likely to be one of the few states that take this responsibility to public employees seriously. There will likely be significant legislative and administrative action taken to serve as a bulwark against any negative effects of the Janus decision.
Nevertheless, this was undoubtedly a blow to all of organized labor, including police unions. The erosion of non-safety unions’ strength will adversely affect wages and working conditions over time, and will undermine the political strength of all unions on issues of common importance.
Opponents of unions will see Janus as an opportunity to drive a wedge between these unions and their members, particularly by trying to play to the conservative bona fides of many individual members. Police unions will therefore need to raise their game in order to remind their members why solidarity and collective actions matter on bread-and-butter issues like wages and working conditions.
About the Authors
Gary Messing, Gregg Adam and Yonatan Moskowitz of Messing Adam & Jasmine LLP are PORAC LDF panel attorneys. In April 2015, after practicing at Carroll, Burdick & McDonough for many decades, Gary, Gregg and panel attorney Jason Jasmine formed a new law firm predominately representing public safety unions and their members in their labor relations. 

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