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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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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Quick response, experienced and knowledgeable attorney which assisted in every step. [My representative] kept me apprised through the process. Thank you.
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I am always satisfied with LDF and all their representatives.
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Outstanding service. Thanks.
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Highly recommend this program for any LEO!
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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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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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LDF is a very valuable resource. I would not do this job without it.
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This attorney and her legal team were one of the best I’ve seen and interacted with. I was always in the loop and constantly updated on the case status. I would use (my attorney) again if the need came and recommend her to anyone.
- 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].
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They did a great job!
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Great program. I was lost until the attorneys explained the situation. I was very impressed and satisfied. Thanks LDF.
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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.
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Very satisfied with the service I was given.
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Keep up the Good Work! Your service was extremely helpful to me. Thank you.
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Excellent service everytime.
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[My Representative] was fantastic, knowledgeable, professional and easy to talk and work with. Even though the allegations lodged have not been resolved, [My Representative] continued to communicate with me, to offer his assistance.
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Those who foolishly feel LDF is not a valuable resource, do so only because they have not yet needed legal representation.
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The charges against me, if sustained, would have likely ended my LE career. I was rightfully exonerated on all charges. I was well represented by [My Representative] and thank him for a job well done!!
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[My Representative] is a knowledgeable attorney and I would highly recommend him to anyone needing representation.
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(My attorney) is a very good attorney, despite his young age. He kept me well informed throughout my legal matter and returned phone calls in a prompt manner. I was very satisfied with his performance and would not hesitate to be represented by him again.
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[ My representative ] is an awesome attorney.
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Great work! Thank you so much!
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[My representative] did a great job. He is both thorough and well educated. I would use him again.
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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.
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- Gina Reyes Broadmoor POA
[My representative] was wonderful! Even though my situation didn't end in my favor, he was very supportive, informative & patient. He always answered every email in a timely fashion and was very accessible. I appreciated everything he was able to do for me.
- Matthew Gardner Colorado PPA
I would not want to be an officer without this coverage. It was great to have it and kept my mind at ease.
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.
- 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].
- William Jackson Santa Maria POA
Keep up the great work.
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- Byron Kies Santa Barbara Co DSA
Everything was great!
- 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.
- Erick Gaunt Palos Verdes POA
- Shaun Luciano LA School PA
LDF assisted by taking a stressful situation and calmed it down by thoroughly explaining the entire process. It was nice to know that I had an ally when I was sure that I was alone.
- Eric White Emeryville POA
Very satisfied with the LDF services provided. Thank you.
- Anthony Gregori Sonoma Co Jr College P O A
Excellent work and well worth it.
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
- Gary Silva East Bay Region Parks POA
Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- Ron Ruddy Riverside POA
- 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.
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Stacey Bonilla San Mateo County DSA
[My Represenative] is an excellent attorney. He is very professional yet personable and I would definitely use him again. Thank you!
- Wendy Morrow Chico Public Safety Association
I had never been through an I.A. in my 21 years. I was scared and ashamed and humiliated. ( My attorney ) was excellent. He helped me through one of the worst times of my life. Had great outcome and I am grateful.
- Emery Eccle Culver City POA
LDF is THE most important asset / resource that police officers have. "Thank you" to all involved and keep up the good work!
- Stephen Woodward Palm Springs POA
Great job by my LDF lawyer. I have had to use them several times over my 20 year career and their service is invaluable.
- Carlos Gonzalez Oakland POA
Very well informed group.
- Paul Figueroa Oakland POA
LDF was there when I needed them!! In this litigious world, it's nice to know LDF has GREAT lawyers on our side who look out for us!! [My Representative] is a great attorney and a person I would trust in any circumstance!!!
- Raymond Fisher Colorado State Patrol Assn
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.
- Kip RIngen Lake Co DSA
My LDF rep kept me well informed concerning the progress of my case. I was extremely satisfied with the service I received. Thanks.
- Todd Costa Santa Clara Co DSA
This was my first Internal Affairs investigation, my lawyer walked me through every step and answered all of my questions, without my lawyer's advice, I would have been lost throughout the investigation and a complete disadvantage against my department.
- James F. Beland Lake County SDA
- Ricky L. Hemphill Los Angeles School PA
[My representative] was an excellent lawyer.
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Aaron Delgado Monterey POA
My representative called me back promptly and kept me informed. I had the impression she cared and was there to 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.
- Melvarene Hayes LA Airport POA
They were there when I needed them and my whole case was handled on the phone. I met my representative after my case closed and he was at our union meeting when I had the pleasure to meet him and thank him in person.
- Kenneth Nelson Plumas Co SA
Good job. Thank you! [My representative] does an outstanding job representing the employees and seems to be very intimidating to the [County Management]. We like it this way!
- 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.
- Michael Sexton Manteca POA
[My representative] was awesome.
- Gary J. Foppiano Oakland POA
[My representative] has been in my corner for 28 years. I have been represented by this firm probably 6 times in my career from minor to major discipline cases with a great outcome for me. They're batting 100%
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”
- Jay Garacochea Culver City POA
[My representative] not only did he do a great job but he listened to my concerns. He did not force his views or game plan and we worked well w/ each other. We agreed on a goal and achieved it.
- Greg Gladson LA Airport POA
[My representative] was very professional and helpful. She kept me informed with my options and the direction of the investigation.
- Roman Fernandez Inglewood POA
My representatives were always well-prepared and organized for hearings and meetings. Their efforts, hard work and full support is truly appreciated.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- 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 !!
- Chris Moore Palo Alto POA
No Complaints. Great Resource.
- Russell Wise Alameda POA
- Joseph A. Henderson Merced POA
The firm I used was very valuable to my career and kept me updated as to status of the case. Thank you!
- William Pryor Statewide University PA
Very helpful program. Helped keep department personnel focused on the issue regardless of their personal issues.
- Gilbert Garcia Oceanside POA
My attorney provided outstanding representation.
- Christopher Boyd Carlsbad POA
[My representative] was an outstanding attorney to work with. Even though I did not receive a desirable outcome entirely, I was exceptionally satisfied with his representation. Thank you.
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. 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.
- Joseph Barrett LA Airport POA
I was very well represented by a professional. I felt well represented and got great advice.
- Jack Ellis Lompoc POA
An excellent plan. Very valuable to its members.
- Tia Dixione Inglewood POA
My representative was very helpful and informative.
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.
- Kelly K. Roe San Joaquin Co Corr Officers
[My representative] did a fantastic job at returning my phone calls and keeping me informed of any and all information pertaining to my case. I would recommend him to anyone.
- Thomas E. Lorente III Bart POA
[My representative] did an excellent job! I would highly recommend him to any officer in need of LDF services.
- Miguel Suarez Monterey Co DSA
[My representative] was very knowledgeable and courteous. He knew his stuff, and I couldn't have asked for a better guy to be on my side on this matter. Thanks.
- Scott Hamilton San Bernardino Co SEBA
Don't go to work without LDF!
- Heather Fontes San Joaquin Co POA
I appreciated the thorough follow up by LDF staff. Many thanks and blessings for the work by LDF.
- Korey Lankow Assn Highway Patrol of Arizona
Outstanding service from bottom-to-top.
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- Christopher Walters Antioch POA
My LDF rep was very attentive, and courteous. She made every effort to keep me informed, and kept my best interests at the front of the process. I was very satisfied with my LDF rep, and the entire process.
- Michael Kan Palo Alto POA
I have always been and will continue to be a strong supporter of LDF and would not work as a police officer without it. I am extremely happy with the service I have received both from LDF and [my representative].
- 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.
- Gilbert Salazar Montebello POA
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.