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.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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The members of my Association are very pleased with the level of representation that PORAC has given to us. As the President I can not thank you all enough.
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I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
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I have known for sometime that PORAC would provide the services I needed at the time I needed them. This is a professional competent organization prepared to handle the appropriate legal matters our officers face in today's environment.
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I thank God for the support of LDF and my attorney. I had a letter of intent to be fired and he helped me turn it all around. I still have my job and I'm so grateful.
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My LDF representative had a power point presentation, which was extremely professional.
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I have used LDF in 3 OIS's. Each time I have been very well taken care of. I highly recommend [ representative ] and the PORAC system. Well done and thank you.
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No criticism to give. Very well.
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Everything was great!
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[ My representative ] is an awesome attorney.
- Adam Laird Eureka POA
Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
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Can’t say enough. Both representatives that I had in 2016 were excellent. ( My attorney ) made himself available to me in late night hours, which made me feel comfortable and at ease. This program is essential to us in law enforcement.
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[My Representative] is fabulous! Thanks for all the exra work she did for me!
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An excellent plan. Very valuable to its members.
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Hope to never in a situation again, however, glad to know that LDF is there to help.
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I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
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Very well informed group.
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In 14 years I have never had to deal with an "IA." [My representative] was wonderful & put my mind at ease throughout the entire process. Thank you!
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I have used this law firm for union related business for the last several years. It was a no brainer to call them for LDF.
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Highly recommend this program for any LEO!
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LDF is THE most important asset / resource that police officers have. "Thank you" to all involved and keep up the good work!
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My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
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[My Represenative] is an excellent attorney. He is very professional yet personable and I would definitely use him again. Thank you!
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Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- Miguel Masso Oakland POA
[I'm very satisfied and grateful] for LDF representing me. My attorney was professional, honest, and very knowledgeable of his profession. During these tough times my attorney would contact me on a regular basis to see how I was doing. This was obviously not part of his job description, but it kept me at ease and not losing my mind. I'm thankful that I was represented by LDF.
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I would not want to be an officer without this coverage. It was great to have it and kept my mind at ease.
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My representatives were always well-prepared and organized for hearings and meetings. Their efforts, hard work and full support is truly appreciated.
- Steven Moorehouse Redding POA
Thank you for your help.
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- Dan Lovelace Chandler LEA
Thank you for the funding and support. I would be in jail right now if it were not for LDF. I would not have had the funding to pay for the case. It was a tremendous help having [my representative] and his support team and the many experts supplied by LDF. I speak for myself, my family and other members of my association.
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[My representative] was very professional and helpful. She kept me informed with my options and the direction of the investigation.
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[My representative] brings a superlative reputation, a comforting and confidence building demeanor and a clear expertise to the table. In particular I appreciate her philosophy that she gives her total undivided attention to her clients during their appointments.
- Christine Farmer Tehama Co DSA
Mine was a fairly simple situation and I may not have needed representative. I am glad I called for help, it gave me peace of mind and reassurance.
- Chris Moore Palo Alto POA
No Complaints. Great Resource.
- Ron Ruddy Riverside POA
- Joe Charvez Santa Clara Co DSA
I could not be happier with the interest, work put into my case, and assistance from [my representative]. Thanks !!
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- Tamboura Nettingham Claremont Custody Center EA
My representative was an outstanding rep. I was very fortunate to be represented by her and the firm should be very proud to have her in it. She's courteous, smart and aggressive when needed. I would not ask for anyone else, if any other situation evolved, she's the best. Thanks.
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- RIchard Okeson Hesperia USD POA
I can't express how satisfying and comforting it was to have such a well qualified and pleasant attorney at my side. Thank you so much for everything you did for me, and if you can, please thank [ my representative] again for being there for me.
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.
- Martha Tschetter Carson City Sheriffs PA
The LDF process was painless and I was able to get immediate representation in an urgent time of need. Thank you LDF
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- Tai Pena-Hornung Oakland POA
Those who foolishly feel LDF is not a valuable resource, do so only because they have not yet needed legal representation.
- Allison Clark Twin Cities POA
[My representative] is the best attorney LDF has. Her attention to details, professionalism, and intelligence were off the charts. If I did not have her as a rep I would probably be out of a job. She is fair and she was honestly concerned about me, my family and my case.
- Clyde Williams San Diego Harbor POA
Thank you for all of the work related to my officer involved shooting case.
- Toinie Lee Jackson Madera Co DSA
Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.
- Tigran Topadzhikyan Glendale POA
[My representative] is an excellent attorney. I would use him again. He communicates with his clients and is very competent.
- Doug Plumhoff Ridgecrest PEA
Great job by all! Always great to know LDF is there when needed.
- Alvaro Ancheta Glendora POA
I felt I was represented in a thorough and professional manner.
- James Hika Border Patrol Supervisors Association
They did a great job!
- William DeWitt CPPA
Everything was awesome...could not be happier!
- Rachael Van Sloten Oakland POA
LDF is absolutely essential to help make a system that is somewhat broken work more effectively. [My Representative] is excellent and takes a great deal of time to lisen and represent.
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- Christopher Connally Assn of LEA
To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
- William Jackson Santa Maria POA
Keep up the great work.
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- Juan Espinoza Fresno DSA
[My representative] did a great job. He is both thorough and well educated. I would use him again.
- Ken Burbank Shasta Co DSA
[ My representative ] was professional, articulate and prepared, but most importantly he understood the emotional impact the investigation was having on me as a person and peace officer. I highly recommend [my representative].
- Jeff Griffin Downey POA
My experience with the LDF, and in particular my attorney, was extremely positive. [ My attorney ] worked very hard and kept me informed along the way.
- Gregg Palmer San Joaquin Co Corr POA
Everything was explained very well prior to my questioning. I was not worried at all during the investigation. Very professional and a great asset to its members.
- Patrick Beggs Fresno Co DSA
Good service. Thank you.
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- Jon Seabron Oceanside POA
[My Representative] was the best and if I ever need to call al lawyer again for anything, I'll be calling her.
- Steven Curtiss Shasta Co DSA
This was my first need for LDF support and I was very happy with the level of service. Thank you.
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.
- Brian Markert Lakewood Police Indp Guild
I feel that I was very well represented by the LDF regarding a fatal officer involved shooting. Both attorneys assigned to assist me - our guild attorney plus a criminal defense attorney - were very aggressive and helpful. Their work was instrumental in helping me to navigate the criminal and internal investigations so that I could return to full duty status.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.
- Joseph Barrett LA Airport POA
I was very well represented by a professional. I felt well represented and got great advice.
- Robert Curato Anderson POA
He did a great job for me!!! He always returned my phone calls within 24-hours. He showed an interest in my case and we were able to get the issue resolved in less than 45 minutes. Thank you for being there when I needed the legal assistance.
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- Ronald J. Danison El Monte POA
The LDF is a tool available to me which I hope never goes away. It makes me feel that much more confident to do my job knowing LDF has my back when police work gets ugly. And it usually does..
- Billy Aldridge Chico POA
[My representative] was awesome! He provided an excellent explanation of the process and was very professional. This was my first IA in 11 years of LE and [my representative] did a great job of reassuring me that I had nothing to worry about. Thank you so much for all your help.
- Sherri Coral Riverside Community College
He was very professional. I trusted him to defend and he did! I am very thankful he was here for me.
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- Richard Salcido Brea PA
LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- David Baker Placerville POA
My experience through dealing with this matter was horrific. Without the efforts of the LDF and more specifically [my representative], I would most certainly have fallen victim to a corrupt and unethical administration. The LDF has saved my career and brought me justice.
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- Shandon Murphy San Mateo POA
Great work! Thank you so much!
- Alfredo Hernandez El Centro POA
[My representative] was very attentive, [informative] and knowledgeable. He spoke very clearly and explained things in ways easy to understand. [He] made me feel like he truly cared about what was going on with this case and me. Not to mention [he] was funny and witty, traits which made him trustworthy and someone who would stand by me and other police officers.
- Christopher Wells Hollister POA
My rep was great.
- Robert Mickschl SAN DIEGO HARBOR P O A
From my initial call to LDF, to my "Thank You" email to (my attorney ) I had the best representation I could have hoped for. The "800" number call receptionists were very professional & understanding. (My Attorney's) office & staff kept me informed & updated. I am forever thankful to LDF & exceptional representation by ( my attorney ) & staff.
- Jaime Kim Oakland POA
My rep did a good job. First we met and he explained that there might be culpability on my part but not nothing close to the allegations. I appreciated his honesty as we have all done things that can be taken out of context so it was important he told me to realize that.
- Robert Glock Oakland POA
I am always satisfied with LDF and all their representatives.
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.