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Labor laws revisited: Unions regroup after SCOTUS ruling

August 22, 2018
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Union advocates protest the Supreme Court’s ruling in Janus v. AFSCME. The ruling held that public sector non-union employees cannot be compelled to pay union dues. (Shutterstock photo)

It was a decision that surprised few, but disappointed many. The United States Supreme Court ruling in Janus v. AFSCME, 585 U.S. ___ (2018), delivered a victory to right-to-work advocates but a blow to labor unions, holding that public sector, non-union employees cannot be forced to pay union dues.

The Janus case was argued and decided largely on First Amendment grounds. The question: does the political nature of public sector union work make the requirement for non-union members to pay dues a First Amendment violation? The court, in a 5-4 ruling decided along party lines, answered that question with a “Yes,” putting an immediate end to compulsory dues payment by nonmembers.

A similar case involving California teachers left the justices deadlocked in 2016 after Justice Antonin Scalia’s death, so the Janus ruling brought an end to a longstanding legal issue that the court had been grappling with. But labor law experts say Janus also raises new questions as public sector unions work to maintain membership and continue their advocacy now that a formerly secure source of revenue has, at least on paper, been lost.
 

dau-schmidt-ken.jpg Dau-Schmidt

“The Court’s decision … in the Janus case strikes at the heart of the system of collective bargaining through elected exclusive representatives that has served the United States well in the public sector for the last 50 years,” Kenneth Dau-Schmidt, the Willard and Margaret Carr Professor of Labor and Employment Law at the Indiana University Maurer School of Law, said in a press release shortly after the Supreme Court’s ruling.

Unsurprising result

Though union advocates view the Janus ruling as strike to the heart, labor attorneys say the decision was not a surprise to parties on either side of the issue. Most say the change in the composition of the Supreme Court — specifically the confirmation of Justice Neil Gorsuch — was an indicator of the coming decision, with Bose McKinney & Evans partner Jon Mayes noting conservative-leaning justices have been hinting at this decision for some time.
 

Mayes Mayes

Specifically, Mayes said justices have been expressing their displeasure with Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which allowed for the collection of dues from non-union public sector employees because those employees purportedly still benefited from collective bargaining. The Janus decision overturned Abood, a result that was expected after Gorsuch, who was appointed by Republican President Donald Trump, joined the court.

“As they say, elections matter,” said Barry Macey of labor and employment law firm Macey Swanson LLP.
 

macey-barry-mug Macey

Further, Ice Miller LLP partner Emmanuel “Manolis” Boulukos said right-to-work advocates have been pushing for a ruling similar to Janus for a long time. And Andrew Gruber, chair of the Labor & Employment Practice Group at Bingham Greenebaum Doll LLP, said lower courts have held that public employees cannot be forced to support union activities simply because they are public employees.

The issue, Gruber said, is that public unions have strengthened their political influence “to the point of being overly controlling of one’s employment.” But Dau-Schmidt told Indiana Lawyer there is a perception that Janus gives greater protections to the rights of union dissenters or non-union members than to members or to unions themselves.

Immediate impact

There are two main ways in which unions will feel the impact of Janus, said Stuart Buttrick, leader of Faegre Baker Daniels’ labor management relations team: a practical impact and a perception impact.
 

buttrick-stuart-mug Buttrick

From a practical perspective, the most obvious impact is a reduction in revenues, which could negatively affect how much advocacy or bargaining work a union can do, Buttrick said. Likewise, union membership could fall, which also would cut revenues.

Macey, however, said the loss of compulsory non-member dues does not have to spell disaster for public sector unions. Since right to work became law in Indiana, Macey said many private sector union have been able to retain 90 percent or higher membership rates.

If unions fail to maintain those rates in light of Janus, Macey said it could be due to lagging efforts toward membership recruitment. That feeds into the public perception issue Buttrick identified: a belief that organized labor is on the decline and that unions are losing their power.

Similarly, Dau-Schmidt surmised that Janus could possibly mark the beginning of the undermining of America’s exclusive representation system.

“What a horrible business model — that you’re (unions) legally obligated to provide services, but you (nonmembers) don’t have to pay for them,” he said.

Indiana’s unions, however, will largely be insulated from the effects of the Supreme Court’s decision. That’s because right to work is already law here, Mayes said, and Indiana teachers union statutes already impose requirements similar to Janus. Thus, the only affected organizations might be municipal employee unions, Mayes said, though he also said he is not aware of any Indiana municipality that compels agency fees from all employees.

Staying alive

Though perceptions about public unions might change because of Janus, the labor law attorneys each said there is at least one method labor organizations can employ to try to keep membership up: marketing.
 

gruber-andy-mug.jpg Gruber

Unions that want to survive, both in the public and private sector, must become more aggressive in how they show their value to potential members, Buttrick said. Employees must see a benefit to spending their money on membership dues, he said, but that benefit won’t be obvious unless unions make an effort to demonstrate the value of their advocacy and bargaining services.

Dau-Schmidt, however, posited the theory that public sector unions could begin to negotiate members-only contracts. But Gruber cautioned against such a move, saying labor organizations could have a better chance of retaining members if they use opt-out, rather than opt-in, contracts.

Over in the private sector, Boulukos said he could foresee Janus possibly heartening right-to-work arguments. He pointed to the example of workplace protections for transgender individuals who are not otherwise protected under state or federal employment laws. If a private sector collective bargaining agreement incorporates protections for transgender employees, then union members who do not support such protections could possibly protest.
 

boulukos-manolis-mug Boulukos

Boulukos acknowledges such an argument would be a stretch, but if the Supreme Court continues to become more ideologically conservative — as is expected with the nomination of Judge Brett Kavanaugh — then the court could become more likely to entertain such an argument. To that end, Boulukos said he would not be shocked if litigation against certain issues, such as the workplace protections example he gave, is filed.

But what the labor law attorneys don’t expect is congressional action to extend right-to-work legislation nationwide. Instead, Macey said it seems the courts are the chosen vehicle for right-to-work advocates to achieve their desires policies.

But Macey also said pro-labor organizations have been busy advocating for their perspectives, pointing to the recent teacher strikes across the country. Given that reality, he said the country’s current political climate indicates that, even in light of Janus, unions may not be in serious danger.•

 

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