by Ann C. Hodges, Professor of Law Emerita, University of Richmond
*This is part of ACSblog's Symposium on Janus v. AFSCME
With oral argument scheduled February 26 and Justice Gorsuch on the bench, conventional wisdom is that the Supreme Court is poised to reverse forty years of precedent in Janus v. AFSCME. Janus is one piece of a longstanding campaign by conservative groups to reduce the power of unions.The desires of many conservatives to weaken unions by removing their power to collect fees from employees they are compelled by law to represent appear to have blinded them to the potential unintended consequences of Janus. A brief filed by conservative scholars, however, reveals that some are beginning to awaken to the potential for Janus to disrupt existing constitutional doctrine, the ability of government employers to control their workforces, and stable labor relations in the United States.
The uniquely American system of labor relations relies on the doctrine of exclusive representation to insure that employers will have to deal with only one union, if chosen by a majority, for each bargaining unit of employees that have similar jobs and common interests. As a corollary, the union is required to represent all employees in the bargaining unit fairly, even if the employees choose not to join the union. Because the union is mandated to represent the employees, many states allow the union to charge nonmembers a fee for representation. In 1977, the Supreme Court upheld such fees as constitutional in Abood v. Detroit Board of Education so long as the fees were used for collective bargaining and contract administration and not for any unrelated activities of the union. Janus, however, argues that Abood must be overturned because all activities of the union, including collective bargaining and contract administration, constitute protected political speech, and the plaintiff cannot be compelled to fund such speech.
The consequences of a ruling for the plaintiff are enormous, and not just for unions. If one pillar of the labor relations system is removed, the system may disintegrate, resulting in multiple unions representing the same groups of employees, competing with one another to obtain the best contract for their members.The employer will be required to contend with several unions demanding different wages and working conditions. Further, unions and their members will have their own constitutional claims if unions are required to represent employees without compensation. The speech rights of unions and their members are impaired if they must expend resources that could otherwise be used for their own speech to represent nonmembers without compensation. Additionally, if the objecting nonmembers have a right not to associate with the union, then the union members have a corresponding right not to associate with the objectors. Also, a mandate for free representation implicates due process, for the union’s property is being taken without compensation.
A ruling that all union activity is political speech has additional ramifications. Courts have regularly ruled that states like Wisconsin can provide collective bargaining rights to some groups of employees and not others, using the rational basis test to find no equal protection violation. Similarly, courts have allowed states to provide payroll deduction to some groups and not others on the same grounds. But if all union activity is protected political speech, then these distinctions implicate fundamental rights, invoking strict scrutiny for such classifications. Thus, the differential treatment of employee groups by the states may not survive. Indeed, unions may even have an argument that there is a constitutional right to collective bargaining.
Equally unlikely to survive are many governmental employer restrictions on employee speech. A long line of cases allows government employers to impose various restrictions on employee speech. The Supreme Court distinguishes employee speech from citizen speech, permitting employers to limit and control employee speech in the interests of the government as employer. When employees speak about their own terms and conditions of employment as opposed to matters of concern to the public, employers typically prevail in cases where they have disciplined or discharged employees for their speech. A ruling in favor of the Janus plaintiffs could obliterate the distinction, requiring employers to tolerate much unwanted speech by their employees.
Finally, if Janus prevails, the case will cast doubt on many other situations where the government requires payments from individuals that are used for purposes to which they object. As scholars, unions, and indeed the Court itself, have noted, taxes, bar dues, university student fees, utility bills, insurance premiums, government pension funds, continuing education requirements for licensing, and homeowners’ association dues involve government-compelled payments, sometimes to third party organizations that may use them for lobbying or other activity objectionable to those making the payments. If such payments are open to challenge on First Amendment grounds, the Court may have opened Pandora’s box.
There is a simple way to keep Pandora’s box closed. Reject the arguments of the Janus plaintiff and reaffirm Abood, which has served the country well for more than forty years.