A More Perfect Union? The Future of Public Unions in the Wake of Janus. By Brandon Mayes

The Supreme Court recently held in Janus v. AFSCME, Council 31that a state law requiring non-union workers to subsidize public union activities violates the free speech rights of non-members by forcing them to subsidize private speech regarding matters of public concern. Despite the obvious, this decision does not have to be a disaster for public unions if the unions are able to effectively embrace the challenge of future funding.

Review of the Case

The Illinois Public Labor Relations Act (“IPLRA”)allows public employees to unionize. If a majority of employees vote to unionize, all employees of that unit are not required to join the union. However, the union will nonetheless be the sole representative of all workers in the unit. \ Public unions, like most other unions, have broad powerswith respect to their representation (negotiating pay, workforce size, promotion methods, layoffs . . . etc.). Non-member employees may not represent themselves directly with the employer. While not required to pay full union dues, non-member employees are required to pay agency fees to the union.

Prior to Janus, the Court upheld a similar state law. In Abood v. Detroit Bd. Of Ed., the Court held non-members may be charged for union activities related to the collective bargaining process, but not for political and ideological projects.

In this case, Janus, a non-member public employee, challenged the IPLRA and asked the Court to overturn Abood. Janus felt the union’s behavior in representing workers was compelled speech, violating the First Amendment, and did not reflect his best interests or those of Illinois citizens.

The Court’s Opinion

In the Janus opinion, Justice Alito reasoned  Abood was “poorly reasoned” and that subsequent developments mean  it is unconstitutional, even when narrowly applied. Justice Alito noted the freedom of speech means the freedom to speak as well as the freedom to not speak. He also noted  while most freedom of speech cases center on what can be said, cases involving compelled speech are at least as important.

 

The Court utilized an “exacting scrutiny” standard requiring such laws to serve a compelling state interest that cannot be achieved through significantly less restrictive means. The Court reasoned  the benefits afforded such unions as sole representatives outweigh the fees lost from non-member employees. The union argued they should not have to represent non-member employees in grievance proceedings when these employees are not paying dues to the union. The Court held that even without dues, the union has a significant interest in controlling the collective-bargaining processby representing these employees. Even if this representation is detrimental to the union, the harm can be addressed through less restrictive means (e.g. denying representation, or charging for specific instances of representation at the request of the employee). The Court found that union speech and activity can and does have significant public impact.

As such, compelling non-members to subsidize such speech is a violation of the First Amendment. Furthermore, the Court held  the line between chargeable and non-chargeableexpenditures is nearly impossible to draw precisely. Thus, in order to waive their First Amendment rights, employees must clearly and affirmatively agree to pay agency fees to the union.

In her dissent, Justice Kagan said  as a result of the decision, unions will lose financial support and will have to find new ways to manage their respective workforces. Without adequate financing, these unions could not adequately represent public employees. Justice Kagan, stated the Court “weaponiz[ed]” the First Amendment to strike a blow to unions they didn’t like. In her view, “[t]he First Amendment was meant for better things.”

Implications

Just as the vote in the Supreme Court was divided—a five-to-four majority—so too has the response to the decision been. Some see the decision as a decisive blow to the future of public unions. However, members of the very union to which Janus belonged, stated that the decision has increased enthusiasm within the union.

While it is reasonable to think  this decision might negatively impact public unions, it is not at all apparent that Justice Kagan’s prediction will or must come to fruition. Nothing in the decision removed the exclusive right of these unions to represent public employees. The unions retain the bargaining power they previously held.

The Janusdecision does not have to be a fatal blow to the workers’ rights movement. It can instead be a galvanizing event that improves public unions’ representation of their members. While Janus holding has the potential to reduce public union funding, it also presents an opportunity for unions to convince more workers to join, increasing membership and bridging that funding gap. In order to attract more employees to join, the unions could democratize their representative procedures, ceding more influence to the people they represent. If unions have to fight to maintain and increase membership, they will have to give their members more influence in union decisions and representation. This will likely lead to more effective, and possibly efficient, representation.  All the unions have to do is “embrace” their workers’ new found freedom.