Category Archives: AFSCME

Compelled Subsidies and the First Amendment

Source: William Baude, Eugene Volokh, Harvard Law Review (2018 Forthcoming), Date Written: July 29, 2018

From the abstract:
Sometimes the government compels people to pay money to organizations they oppose. A lawyer may be forced to fund a bar association, a college student to fund student group activities, a public employee forced to fund a labor union. Unsurprisingly, people may bristle at such compulsion. Nobody likes having their money taken, and knowing that it will be spent on causes one opposes seems to add insult to injury. But when is it unconstitutional? For forty years, the Court has unanimously concluded that being required to pay money to a union, or to a state bar, is a serious burden on one’s First Amendment rights. This burden, the Court has held, is generally unconstitutional when the money is used for most kinds of political advocacy. In Janus v. AFSCME, a majority of the Court went further, and held that requiring public employees to pay union agency fees is categorically unconstitutional, even when the money is used for collective bargaining. Such public-sector collective bargaining, the majority held, is itself inherently political. And the government interests in mandating such payments don’t suffice to justify such requirements. There was a strong dissent by four Justices, but as we discuss in Part I, we think the majority had the better argument on both of these two points. But we think the majority — and for that matter the dissent, and the unanimous opinions in Abood v. Bd. of Ed. and Keller v. State Bar — erred on the preliminary point. The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. The employees in Janus were not compelled to speak, or to associate. They were compelled to pay, just as we all are compelled to pay taxes; our having to pay taxes doesn’t violate our First Amendment rights, even when the taxes are used for speech we disapprove of — likewise with having to pay agency fees. If we are right, as we argue in Part II, then the result in Janus was wrong. In Part III, we turn from evaluating the decision to anticipating its consequences. We doubt Janus will have significant effects on government speech rights (Part III.A), but it will likely bar the funding of other forms of private speech. Janus will likely extend to a prohibition on state bar dues, at least so long as the bar is seen as sufficiently removed from other government agencies (Part III.B). It might also include constraints on public university student governments’ use of student activity fees, though universities can create accounting workarounds that will practically allow such student activity funding to continue (Part III.C). Finally, and perhaps most consequentially, Janus may lead to massive liability for unions that have collected the agency fees that are now viewed as unconstitutional. (Part III.D). Though the fees were seen as valid when collected, the Supreme Court’s precedents say that constitutional reversals in civil cases are generally retroactive, so everyone in Janus’s shoes can get agency fee refunds just as Janus himself could (at least so long as the statute of limitations has not lapsed). Moreover, private organizations such as unions are generally not entitled to qualified immunity or similar defenses. While the unions do have some possible arguments to mitigate the damages or try to claim a special form of good faith, those defenses are speculative, and cannot be counted on.

Three Key Takeaways From Supreme Court Union Ruling

Source: Maureen Minehan, Employment Alert, Volume 35 Issue 15, July 24, 2018
(subscription required)

Whether you’re a public employer with a union or a private employer with no union fears, there’s much to consider in the U.S. Supreme Court’s ruling in Janus v. AFSCME, Council 31. The 5-4 decision, issued on June 27, 2018, the final day of the 2017-2018 Supreme Court term, could change the influence unions have in elections and in policymaking.

The case centered on the legality of “fair share” fees that must be paid to unions by non-union members. The fees, also known as “agency fees,” are typically a percentage of the full dues paid by union members and represent the costs of union activities thought to directly benefit all employees, such as collective bargaining, grievance resolution and general representation. The goal is to prevent employees from becoming “free riders,” or individuals who benefit from union services without paying for them.

Why the Janus Decision Matters to Library Unions

Source: Carrie Smith, American Libraries, July 24, 2018

On June 27, the Supreme Court delivered a blow to public sector unions that could affect many library workers. The 5–4 decision in Janus v. American Federation of State, County, and Municipal Employees (AFSCME) declares it unconstitutional for public sector unions to collect agency fees from nonmember employees based on free speech grounds.

Library workers in public, school, academic, and other libraries who are employed through state and local governments in the 22 states that are not already right-to-work states are affected by this decision. Those who are not union members will no longer have agency fees deducted from their paychecks. More than a quarter of librarians (26.2%) and around one-fifth of library technicians (19.3%) and library assistants (22.7%) are union members nationwide, according to statistics compiled by the AFL-CIO Department for Professional Employees…..

The Demise of Fair Share Fees: ‘Janus’ and Its Impact

Source: Adam Santucci and Langdon Ramsburg, Legal Intelligencer, August 2, 2018
(subscription required)

Recently, the U.S. Supreme Court issued a landmark decision, which may ultimately prove to alter the landscape of public sector labor relations and undermine the political clout of public sector labor unions throughout the United States.

Recently, the U.S. Supreme Court issued a landmark decision, which may ultimately prove to alter the landscape of public sector labor relations and undermine the political clout of public sector labor unions throughout the United States. The court’s holding in Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018), was clear: requiring public sector employees to pay “fair share fees” (sometimes referred to as “agency fees”) violates the First Amendment.

The road to Janus was long and took some interesting twists and turns. To fully understand Janus and its impact, it is necessary to start at the beginning—the court’s 1977 holding in Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

Supreme Court Bans Mandatory Union Fees for Public-Sector Workers

Source: Lisa Nagele-Piazza, SHRM, June 27, 2018

In a closely watched case, the U.S. Supreme Court overturned 40 years of precedent by ruling that mandatory public-sector union dues are unconstitutional.

In a 5-4 vote on June 27, the justices held that states and public-sector unions may no longer require workers to pay agency fees. “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay,” Justice Samuel Alito Jr. wrote for the majority.

In dissent, Justice Elena Kagan said the decision will have large-scale consequences. “Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces,” she wrote…..

Related:
Decline in Union Membership Expected After High Court Ruling
Source: Lisa Nagele-Piazza, SHRM, June 28, 2018
Supreme Court held that mandatory public-sector union fees are unconstitutional

Right-Wing, Business-Funded Groups Are Preparing to Use the Janus Decision to Bleed Unions, Internal Documents Show

Source: Lee Fang, Nick Surgey, The Intercept, June 30, 2018

Just moments after the Janus vs. AFSCME ruling came down, several conservative think tanks launched campaigns to leverage the pivotal Supreme Court decision as a means of starving unions of funds and eventually disbanding them altogether. The effort is aimed at encouraging public-sector workers in 22 states to withhold minimum bargaining fees from their labor unions, a shift made possible by the Janus decision. As labor comes under attack, the advocacy groups will launch decertification campaigns to nullify certain unions in certain jurisdictions.

Withholding the funds and dismantling the unions could have profound effects on American politics — a feature, not a bug, of the conservative activism following Janus. Many public-sector unions and the activists who work with them are affiliated with the Democratic Party, and the organizing they carry out is dependent on the hundreds of millions of dollars they expect to collect in union fees in the coming years…..

Supreme Court Rules Against Public-Sector Unions

Source: Colleen Flaherty, Inside HigherEd, June 28, 2018

High court says public employees don’t have to pay regular agency fees to unions that represent them in collective bargaining and more, which could hurt faculty and staff unions.

Related:
Janus, Faced
Source: Matt Reed, Inside HigherEd, Confessions of a Community College Dean blog, June 27, 2018

The ruling on unions.
A friend in grad school once commented that she and I followed the Supreme Court the same way that normal people follow baseball. So yes, I’ve been mulling over the Janus v AFSCME case for months. Longer, in fact, if you count the version that didn’t get decided when Scalia died.

I’ve been working in unionized public higher education since 2003. At all three community colleges, and in both states, representation fees were part of the order of the day. I’ve known faculty who swear that the union is the only thing standing between them and penury, and I’ve known faculty who wanted absolutely nothing to do with their union. Having also worked in a decidedly non-union setting — DeVry — I’ve seen the differences. But here I’ll focus instead on possible long-term fallout. Assuming the ruling stands for a while, what’s likely to happen?

The obvious immediate impact will be that the folks who only pay representation fees because they’re compelled to, will stop. Anecdotally, I’d guess that this is a small, but non-zero, number. That will represent lost income for the union, and a short-term boost in take-home pay for those employees.
What happens next is less obvious.

Teachers’ activism will survive the Janus Supreme Court ruling
Source: Sherman Dorn, The Conversation, June 27, 2018

….As a scholar of the history of post-World War II education policy, I see this decision as an important landmark in the history of teachers unions. The Supreme Court ruling is a serious legal and financial blow, but it will not kill public employee unions, teachers unions – or the ability of teachers to work together to amplify their voices for social change….

Trump’s Supreme Court Strikes Blow to Government Workers, Good Paying Jobs
Source: Mary Bottari, Center for Media and Democracy, June 27, 2018

In a major blow to organized labor and good paying government jobs, the U.S. Supreme Court ruled today that government workers who choose not to join a union cannot be charged fees to reimburse the union for the cost of representing them in collective bargaining.

The decision was 5-4 in the Janus vs. AFSCME Council 31 case, with Trump appointee Neil Gorsuch supplying the deciding vote. Justice Samuel Alito, who actively invited a challenge to union fees, wrote the decision for the Court’s right-wing majority.

In today’s decision, Alito wrote that the fees, called “agency fees,” violated the First Amendment. In doing so, Alito overruled a 41-year-old Supreme Court decision legalizing these fees in the Abood vs. Detroit Board of Education decision.

The decision ushers in “right to work” style conditions for public employees in states across the nation. These anti-union measures originated in the Jim Crow South as a means of undermining unions who were organizing black and white workers together in the same shop. Predictably, Koch brothers groups–such as Americans for Prosperity, the American Legislative Exchange Council (ALEC), and the State Policy Network–cheered the ruling, while union leaders prepared to renegotiate thousands of contracts and deal with a new legal landscape for unions across the land.

Janus decision extends First Amendment ‘right of silence’
Source: Robert A. Sedler, The Conversation, June 27, 2018

The Supreme Court’s Janus ruling extends strong protection to the First Amendment ‘right of silence’ and continues their trend of expanding First Amendment rights, often at the behest of conservatives.

Janus v. Democracy

Source: Joseph A. McCartin, Dissent, June 27, 2018

The Janus decision is a significant setback for democracy. What should public-sector workers do now? …. By squelching democracy both at the polls and in the workplace, the Court has sown a bitter wind. Recent uprisings by teachers in states like Oklahoma and West Virginia, which already banned union fees, suggest that it might one day reap a whirlwind…..

6 excerpts that explain the Supreme Court’s big anti-union ruling

Source: Dylan Matthews, Vox, June 27, 2018

Janus v. AFSCME is a very, very big deal. ….

…. On Wednesday, the Supreme Court issued what is probably its single most consequential ruling of the year. Janus v. AFSCME is a devastating blow against public sector unions, barring them from charging “agency fees” to the public employees for whom they negotiate pay increases and benefit bumps if those employees decline to join the union as full members.

Now, teachers unions, police unions, and more will be forced to lobby public employees to pay full union dues, even though those employees will get the same benefits from the union if they pay nothing at all.

You can read our full explainer on the case here, but it’s worth diving into the actual language of Justice Samuel Alito’s 5-4 majority opinion and Justice Elena Kagan’s dissent in more detail to understand exactly why the Court decided to make the whole United States adopt a “right-to-work” policy when it comes to public employees.

1) The Court has overruled a decision it made in 1977 ….
2) The Court’s conservatives view making public employees pay agency fees as an unacceptable First Amendment violation ….
3) Alito doubts that this decision will hurt public-sector unions as much as they fear ….
4) Alito is deeply worried about the political economy effects of public unions ….
5) Public employee union membership has to be opt-in now, not opt-out ….
6) Kagan argues this ruling throws stare decisis out the window ….

Court Rules Against Unions in Janus

Source: Jeff Hirsch, Workplace Prof blog, June 27, 2018

The Supreme Court has just released its decision in Janus v. AFSCME. I’m not typically the best predictor of what the Court will do, but even I had this one called from the moment Justice Gorsuch was confirmed. The Court, in a 5-4 decision by Justice Alito, overruled its own Abood decision to hold that public-sector union fees are unconstitutional. I won’t repeat how we got to this point (although you can start at my earlier post on the Janus oral argument, which has links on the aborted Friedrichs case, as well as our coverage of 2014’s Harris v. Quinn, in which Alito made clear where he wanted to go on this issue), but the upshot is that public-sector unions nationwide must now operate on an opt-in basis for all union contributions—even contributions that go to core collective-representation services. In other words, the free rider issue that exists for the private sector in right-to-work states now exists for all public-sector workplaces.

The basis for the decision is that dissenting employees’ have a 1st Amendment right not to pay any funds to the union representing them—even for collective bargaining and other work that goes to the benefit of all unit employees. This follows the dicta in Harris, but is a clear departure from the Court’s public-sector employment jurisprudence, which does not look favorably on individual employees’ 1st Amendment claims. In particular, if this case didn’t involve unions, you would expect the Court to hold that concerns about dues paid to a third party are not matters of public concern. This result, to my mind, is the culmination of several related factors: in addition to the strong pro-business bent of this Court, we’ve seen public-sector unions becoming more powerful than their private-sector counterparts, while also becoming strongly aligned with one political party. This has occurred during a period of time in which political antagonism is on the rise and we’ve more jurists appear willing to join that battle. As a result, unions as a whole, but public-sector ones in particular, have been targeted both politically and legally. And they just took a massive loss at the Court today.

Janus, of course, is not the end (although some unions may feel like it right now). Here are some questions I have after the decision—please add more (or responses) in the comments: …..