An upcoming U.S. Supreme Court decision in a case considering the balance between the First Amendment and public employees’ rights has union advocates concerned that longstanding union practices could soon be set aside.
The high court heard Mark Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., 16-1466, on Feb. 26, returning to an issue that previously split the Court 4-4. The question: should non-union public employees be required to pay collective bargaining fees, or does the political nature of union work make that requirement a First Amendment violation?
A similar case involving California teachers could have answered the question in 2016, but the sudden death of Justice Antonin Scalia left the Court divided. Now, labor and employment attorneys say the justices seem prepared to overturn mandatory collective bargaining fees, a decision they say will have a significant impact on union operations and the services they provide to public employees.
Long line of cases
As an Illinois child support specialist, petitioner Mark Janus is represented in collective bargaining actions by the American Federation of State, County and Municipal Employees Council 31. Though he is not an AFSCME member, Janus — along with all other Illinois public employees — is required to pay agency fees for the union’s collective bargaining services.
That requirement was upheld more than 40 years ago in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the case Janus is now asking the current court to overturn. The Abood ruling was grounded in the notion that all public employees, even those who don’t belong to a union, benefit from collective bargaining and, thus, should pay their share of dues to avoid a free rider problem.
But Janus argued the Court’s decision in Abood conflicts with subsequent caselaw in Knox v. SEIU Local 1000, 567 U.S. 298 (2012) and Harris v. Quinn, 134 S. Ct. 2618, 2644 (2014), which held that mandatory fees for non-union members cannot violate an employee’s First Amendment rights. Because Janus argued union activities – even collective bargaining – are inherently political, being forced to pay dues to support those activities violates his free speech rights by forcing him to support the union’s political views.
But the state of Illinois and AFSCME pointed instead to cases such as Connick v. Myers, 461 U.S. 138, 143 (1983), which held that public employees’ speech is only protected when they speak on matters of public concern. Collective bargaining agreements are not matters of public concern, the respondents said, so First Amendment rights aren’t implicated when funds are used to support bargaining practices.
Tasked with reconciling the decisions in each of those cases and deciding the fate of mandatory non-union fees for public employees, the nine justices must grapple with stare decisis and the role of unions in the public sector to determine if Abood’s longstanding decision can continue to be the law.
“If the plaintiffs win, it will be a departure from precedent … that’s been followed for 40 years,” said Barry Macey, an Indianapolis labor and employment attorney who represents unions. “That’s precedent that has been used in the formation of collective bargaining relationships across the country.”
Before the Court can determine if non-union employees’ rights have been violated, it must first make the threshold decision of whether mandatory agency fees contribute to the political work of unions. According to Janus, there is no difference between collective bargaining and union lobbying because both forms of speech have the same intended outcome: affecting public policy.
“An exclusive representative’s function … is quintessential lobbying: meeting and speaking with public officials, as an agent of parties, to influence public policies that affect those parties,” Janus wrote in the petitioner’s brief.
Assuming that premise is true, Janus’ case is on relatively solid ground, said Manolis Boulukos, a partner in Ice Miller’s labor and employment group. It can be difficult to discern which portion of union fees is being used for political purposes, Boulukos said, and those portions that are used for political speech would implicate First Amendment rights.
But Macey and Barbara Fick, a Notre Dame associate professor of law, both pointed to the line drawn in Connick between matters of public interest and those relating to office affairs. The government’s interests as an employer are different than its interests in government affairs, and because routine employment matters fall within its purview as an employer, the First Amendment may not be implicated, Fick said.
Similarly, collective bargaining concerns only employment matters, Macey said, so the Connick decision means collective bargaining practices are not political in nature. He noted that 22 states filed as amici in support of Illinois and AFSCME, while Indiana joined a group of 20 states supporting Janus.
Implicating public interests
Among the arguments presented in the 20 states’ brief was the notion that collective bargaining practices, at least in part, contributed to multiple instances of municipal bankruptcy. The states pointed to examples in Detroit, Stockton, California, and San Bernardino, California, where union demands allegedly forced the government to cut back on public services. Such an impact is an obvious matter of public concern, the states argued, thus making collective bargaining practices political.
But Fick said the situations in these cities could also be attributable to financial management practices, making it inappropriate to place the blame entirely on unions. Similarly, Macey said tax caps could also play a role in tighter municipal finances.
Fick also noted a competing public interest that could defeat Janus’ argument – maintaining labor peace. Even if the First Amendment applies to collective bargaining, the need to maintain an orderly public workforce could overcome its rights by presenting the government with a compelling interest in negotiating with its employees via a union representative.
Despite those arguments, all parties predict that the Court — with Justice Neil Gorsuch as the deciding vote — will rule in favor of Janus and end mandatory agency fees for non-union members. Assuming that comes to pass, Macey again pointed to the 22 states supporting the respondents’ position to demonstrate the far-reaching implications of overturning Abood.
But Indiana likely won’t feel a significant impact in the wake of the predicted Janus ruling, Boulukos said, considering neither teachers nor public safety officers — the only public employees who have the right to bargain — can be forced to pay union dues involuntarily. However, some Hoosier public employees are dependent on international union work, so they could feel an impact in that regard, he said.
Regardless of the local impact, the attorneys agreed that nationwide, unions and public sector employees alike could see changes in their work. Union membership will likely drop as it often does when right-to-work laws are passed, Fick said, while Macey said public sector employees could find themselves with less protection.
“I would point out that it seems to me that this is a case where the alleged constitutional rights of employees (are) being used to weaken unions, and the result of that is that it makes employees more vulnerable,” he said.
Janus, however, noted that Harris found Abood “wrongly assumed that forced fees are necessary for exclusive representation.” He argued to the contrary that the power that comes with being an exclusive representative will be enough to induce unions to continue representing public sector employees.
The Court is expected to rule on Janus in June.•