This term, the Supreme Court will decide Janus, where it will determine the future of agency shop agreements in public sector unions. Despite being a public-sector union case, Justice Ginsburg raised a question on many people’s minds at oral argument: “what happens in the private sector?” Her question may prove prescient, considering that five justices in Harris v. Quinn’s dicta questioned an older line of cases upholding private sector agency fee arrangements. Contrary to others who have spoken on this issue, I believe that a holding striking down public sector agency shop agreements in Janus could spill into the private sector without doing much violence to the state action doctrine….
From the abstract:
Unions today are under First Amendment fire, with the compelled speech doctrine as the weapon of choice. Conservative interests are waging a legal war against agreements that include “fair-share service fees,” under which public-sector unions are permitted to charge non-union members to pay their share of the costs of collective bargaining. Espousing libertarian theories of free speech doctrine, the National Right to Work Legal Defense Foundation and its allies maintain that fair-share service fees, at least in the context of public-sector unions, constitute a form of political speech, and that laws mandating their payment by non-union members violate the First Amendment’s prohibition against compelled speech. The Supreme Court is poised to accept this position, having granted certiorari in Janus v. American Federation of State, County & Municipal Employees, Council 31, a case that threatens to overrule the Court’s longstanding acceptance of the constitutionality of fair-share service fees.
Notwithstanding the superficial appeal of the compelled speech argument, this Article argues that pro-union interests have plenty of cover within the First Amendment’s freedom of association doctrine. Viewing Janus and its ilk through an associational lens demonstrates the fallacies that lie behind doubts concerning the constitutionality of such agreements. Although it is doubtful that the Supreme Court will reaffirm the constitutionality of fair-share service fees this term, it is important to air such arguments in order to head off potentially even more significant First Amendment attacks on unionism that are currently underway and to articulate a theory of the First Amendment that remains consistent with the basic New Deal compromise that leaves matters regarding labor policy to our legislatures, where they belong.
From the abstract:
In Agency Fees and the First Amendment, Professor Benjamin Sachs offers a pair of novel arguments for why the Court should pause before invalidating public sector union agency fee agreements throughout the country.
First, he argues that the money sent to unions to offset their bargaining costs is better viewed as the government employer’s money than as the employees’. Collective bargaining agreements force employees to turn the money over to the union on pain of losing their jobs, after all, and so the workers never have a “genuine choice” whether to make the payment at all. That, Sachs explains, should lead us to “treat agency fees as a direct payment from employer to union.”
Second, Sachs argues that the money might instead be better understood as the union’s all along. But for the wage premium that unions bring about for their workers, the argument goes, the fees that unions receive would not exist — and so the money is properly viewed as the union’s property from the outset.
These arguments are among the best defenses of agency fees that I have seen. Ultimately, however, both arguments are susceptible to counterattack for reasons discussed in Parts I and II herein. In a final concluding part, I express my agreement with Sachs on another point: the twenty-two states that currently permit agency fee agreements in the public sector can undo the impact of an adverse outcome in Janus by authorizing government employers to reimburse unions directly for their bargaining costs. It is this legislative alternative that, in my view, warrants the greatest attention from labor proponents in the coming years.
The demise of “fair-share” rules could cripple organized labor. Here’s a viable alternative. …. To avoid a fatal erosion of their funding base, public-sector unions need a new strategy. Their best bet is to allow those employees who don’t want to pay their fair share to give their money to a charity of their choosing. ….
The rise and fall of Wisconsin’s remarkable 2011 uprising holds lessons for a post-Janus world…..
…. Journalists reporting on the implications of the impending Janus decision often note that recent experiences in Wisconsin offer a preview. In this, they’re usually referring to the impacts of anti-union legislation signed into law in Wisconsin in 2011-2012. But we think Wisconsin offers another set of lessons as well: of how a twenty-first century mass uprising by hundreds of thousands — perhaps more than a million — working people came about in one US state, and of where that unprecedented uprising faltered. ….
Mark Janus’s lawyers are desperate to have the Court decide Janus v. AFSCME without considering any facts. Janus is an Illinois state employee, who is represented by AFSCME Council 31. Like all other employees in his bargaining unit, he is required to pay fair share fees to the union to cover the costs of providing representation. Janus wants to Court to rule that these fees are unconstitutional without even considering how AFSCME spends these fees. Janus also thinks that somehow the Court can decide that his refusal to fund union speech on workplace issues is protected by the First Amendment without overturning a series of cases holding that the grievances of public employees are not a form of speech protected by the First Amendment. In addition, Janus thinks that merely by saying so, the Court can decide that states have a compelling interest in requiring lawyers to pay bar dues to mandatory bar associations, but no similar compelling interest in requiring public employees to pay fair share fees. Janus’s lawyers realize that the more the Court considers actual facts, the harder it is for them to win their case, so their approach has been to insist that the case can be decided without any factual record. But, the oral argument made clear that if the Court is not prepared to simply reaffirm its forty-year old precedent in Abood v. Detroit Board of Education, the only responsible move is to remand the case to develop a factual record…..
Coverage After the Janus Oral Argument
Source: Maddy Joseph, On Labor blog, February 28, 2018
The Supreme Court heard oral argument on Monday in Janus. Analyses report that, as expected, there were pointed questions for AFSCME and Illinois by Justices Alito and Kennedy; the four liberal justices took every opportunity to highlight the potential effects of overruling Abood on collective bargaining and the ability of governments to manage their workforces. Justice Gorsuch was silent. There is a summary on SCOTUSblog, plus another analysis there. NPR, the Wall Street Journal, and the LA Times also have solid summaries. At the Atlantic, Garrett Epps highlights how little hard evidence there is in Janus–with no trial, there is not a developed record; and neither Janus nor the U.S. filled in those facts at argument.
The Times had a nihilistic editorial: assuming that the Court would overrule Abood, the editorial put Janus in political context. It began with Merrick Garland and ended, “Whatever the justices decide in Mr. Janus’s case, the drama that preceded it is another reminder of the importance of every Supreme Court appointment.”…..
The attorney whose arguments were heard in the Supreme Court yesterday—a decade after his death—actually wanted all unions outlawed. …. As the Supreme Court heard the pivotal union case, Janus v. AFSCME, on Monday, an unacknowledged presence haunted its chambers: that of Sylvester Petro, who conceived the argument on which the case turns. Although he died in 2007, this ideologically driven, anti-union law professor originated the legal strategy behind this case. His radical vision illuminates Janus’s profound implications.
Petro was the first to contend that public-sector collective bargaining was simply a form of politics, and that therefore, any effort to require government workers to pay “agency fees” to a union in return for its representational work amounted to compelled political speech that infringed on their First Amendment rights—the argument that Illinois public employee Mark Janus embraced in this case. Petro tried unsuccessfully to get the court to endorse that argument in the 1977 case of Abood v. Detroit Board of Education, the precedent Janus seeks to overturn.
Yet despite Petro’s seminal role in shaping their argument, Janus and his supporters seem intent on erasing any memory of Petro. His name is not mentioned among the voluminous citations of some two-dozen briefs supporting Janus.
Petro’s invisibility is intentional. Those who seek to advance his vision today know that any reference to his radically anti-union views would expose their equally radical aims. ….
The Supreme Court heard oral argument today in Janus v. American Federation of State, Municipal, and County Employees, a challenge by an Illinois child-support specialist to the fees that he is required to pay to the union that represents him, even though he does not belong to any union. Although this is the first trip to the Supreme Court for Mark Janus, the employee, it was the third time in four years that the justices have taken the bench to consider the issue presented by Janus’ case. After roughly an hour of sometimes testy debate in the courtroom, the outcome almost certainly hinges on the vote of the court’s newest justice, Neil Gorsuch – who did not tip his hand, opting instead to remain silent…..
Source: Stuff You Missed in History Class, Podcast, February 7, 2018 (audio)
Memphis sanitation workers stayed off the job starting January 12, 1968 in a strike that lasted for nine weeks. This was the strike that brought Dr. Martin Luther King Jr. to Memphis, Tennessee, where he was assassinated on April 4 of that year.
Tracy’s Research: ….
Source: The Economist, February 22, 2018
Mark Janus could be making history this year. On February 26th the social worker from Illinois will be sitting with his two lawyers in the hallowed setting of the Supreme Court as the justices hear one hour of oral arguments in Janus v American Federation of State, County and Municipal Employees, which asks whether public employees like himself, who choose not to join their designated union, may still be charged a compulsory “agency fee” to support collective bargaining. Mr Janus argues that the fee violates his First Amendment right to freedom of speech, because it forces him to subsidise an organisation whose bargaining position he rejects.
The court’s ruling in the case could determine the future of the labour movement…..