Search Results for ‘janus union’

Janus v. AFSCME will advance workers’ rights. It won’t end public employee unions.

In yesterday’s Janus v. AFSCME Council 31, the Supreme Court ruled in an opinion by Justice Samuel Alito that the practice of requiring public employees to pay “agency fees” to unions to engage in collective bargaining, including the pursuit of demands concerning workplace policy that may be antithetical to the worker’s own views, is a violation of the First Amendment’s restrictions on compelled speech. The ruling was 5-4 along conservative-liberal lines.

In her dissent on behalf of the four liberals, Justice Elena Kagan outlined the so-called free-rider problem that has been said to justify requiring public employees to pay union fees [citation to 1991 paper omitted]:

Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)—so they too quit the union. And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative—or, in the worst case, to perform them at all. The result is to frustrate the interests of every government entity that thinks a strong exclusive-representation scheme will promote stable labor relations.

The free-rider argument is a weak one on its own terms, even if you leave aside Justice Alito’s observation for the majority that free-rider economic arguments are ordinarily not expected to override First Amendment concerns. To begin with, unions not only still exist in the U.S. states (a majority) that have enacted “right to work” laws curbing agency fees, but sometimes wield much political clout. Janus does not spell a death knell for public unions that provide their members with value.

Moreover, as Cato scholars Trevor Burrus and Reilly Stephens have pointed out, European unions have developed along somewhat different institutional lines: they rely less on models of exclusive bargaining representation and more on collective social representation and solidarity (often linked to direct involvement in provision of fringe benefits and other valued services).  Far from being weakened by their departure from the “American” model of exclusive collective representation, they seem to be in many ways more formidable than are American unions.

Expect state and local governments that are closely allied with the political interests of unions to scramble now to enact measures meant to evade Janus. Here is a description of what just happened in California, from Joel Fox at the political site Fox and Hounds:

SB 866 would cement union control over access to individual employee decisions on whether to continue paying union dues, should mandatory agency fees be deemed unconstitutional. …Key elements of the bill include:

  • Requiring for any school teacher, state firefighter, college professor, prison guard, environmental regulator, or any of the hundreds of other classes of state and school employees who may wish to reduce or eliminate their mandatory union dues, that they make this request exclusively to the union rather than to their employer.
  • Unions would not be required to provide the actual authorizations for dues deduction to the school board or State Controller, but instead would merely certify to the public agency’s payroll department as to who is or is not paying union dues. Public employers must rely on the unions’ representations regarding dues deductions.
  • Unions would indemnify public employers over claims made by individual employees for deductions made in reliance on union representations.
  • Employees would be prohibited from contacting their employer directly regarding union dues deductions.
  • A public employer may not send mail or email to its employees, or provide an oral presentation, about their right to join or refrain from joining a union, unless the employer facilitates delivery of similar messages from the union.
  • Government employee unions currently have access to orientation sessions for new employees. This bill would limit disclosure of the date, time and place of these sessions to the employees and unions only. Members of the public and taxpayers would be kept in the dark about meetings of public officials.

If signed by Governor Brown, the measure would take effect immediately.

The California bill was rushed through both houses in quickstep fashion as a budget trailer bill and was signed by Gov. Brown yesterday. Note, however, that section VII of Alito’s opinion, by requiring affirmative consent for fee withholding rather than allowing assumed waiver, could foil some of the scheme above.

Note also our March post on how unions may be planning to reclassify some workers from public to private in order to get around Janus, including workers who had earlier been reclassified from private to public to benefit the same unions.

[cross-posted and expanded from Cato at Liberty] More: earlier, Roger Pilon, Ilya Shapiro (“Today’s decision at long last remedies this violation of all workers’ rights to the freedom of speech and association”), Cato podcast with Caleb Brown and Trevor Burrus.

Unions explore ways to dodge Janus in advance

In the pending Janus case, the Supreme Court may recognize a First Amendment right of government workers not to be obliged to pay mandatory union dues as a condition of employment, while not disturbing the situation for private sector employees, who have no such First Amendment right. Presto, an opening for union subterfuge involving pretend privatization of the government jobs:

The unions’ version is to create and insert between government and employees sham “private” units to handle human resource and payroll functions and, thereby, assume the role of “legal employer.”

Ironically, some of the first groups of unionized employees to be targeted for such a strategy are in sectors where public-employee status had itself been a subterfuge: independent home health care workers paid with state moneys who had only been declared public employees in the first place as a way to herd them into unions. With the new twist, these independent workers could thus have been reclassified twice: first from private to public so as to allow the fiction of a single employer and coverage by pro-union state policy, and then from public to private to avoid the constitutional protections that would ordinarily accompany work for a public employer. [Red Jahncke, New London Day and earlier The Hill.)

Public university professor: First Amendment should bar required union representation

In the 2018 Janus decision, the Supreme Court ruled that the First Amendment protects individual public employees from having to financially support unions to which they do not wish to belong. But labor law continues to require “exclusive representation”; individual public employees may not bargain on their own behalf in place of the designated union, nor may they enlist a different union to represent their interests. (Meanwhile, and also problematically, incumbent unions are tasked with a legal duty to represent individual employees even if they reject membership and decline to pay dues.) Jonathan Reisman is an economics professor at the University of Maine-Machias who does not wish to be represented by the recognized faculty union, which he does not believe represents his own priorities either on work-specific issues such as wages and schedules or on public policy more broadly. Reisman is now seeking Supreme Court review of his action seeking relief from exclusive representation on First Amendment grounds [Trevor Burrus and Michael Collins on Cato certiorari amicus brief in Reisman v. Associated Faculties of the University of Maine]

Janus: what comes after

The Supreme Court’s Janus decision on public sector union fees was not received in a spirit of total cooperation by all public sector unions and employers. Two Cato Daily Podcasts from late last year, one with Robert Alt of the Buckeye Institute, the other with Ken Girardin of The Empire Center:

Related: Federalist Society podcast with William Messenger and panel with Messenger, Steven Greenhut, Hon. Chuck Reed, and Hon. Ryan Nelson; William Baude (critical of Janus).

And now, citing the First Amendment and the Janus precedent, “three conservative lawyers are seeking to overturn Texas laws that require attorneys to join the State Bar of Texas and pay annual dues;” in Texas, as in many states, bar dues go to various ideologically fraught issues and causes [Chuck Lindell, Austin American-Statesman]

Just for fun: Cato’s amicus brief in Janus v. AFSCME is an answer on Jeopardy!

Janus aftermath roundup

Labor and employment roundup

Labor and employment roundup

  • “For years, a Texas electric utility company and its union feuded over the installation of automated smart meters; the company wanted them; the union didn’t, fearing they would put meter-readers out of work. A repairman for the company testifies to state legislators that the smart meters are combustion prone and damaging homes. Company: Which isn’t true. You’re fired. NLRB: Can’t fire him. His testimony was protected union activity. D.C Circuit: Maybe not. We’re very deferential to the Board, but even so, the NLRB’s reasoning here is ‘too opaque.'” [John Kenneth Ross, Short Circuit, on Oncor v. NLRB]
  • May Day replay: What happened at the Haymarket Affair? [John J. Miller] A Wikipedia footnote [Timothy Messer-Kruse, Chronicle of Higher Education]
  • Decline in number of U.S. manufacturing jobs is not owing to decline in unionization [Colin Grabow, Cato]
  • More for the “I thought contractual non-union arbitration was just a racket to benefit employers” files [Eric B. Meyer, Employer Handbook (prospective “tsunami” of arbitration claims against chain restaurant); Daniel Schwartz (exotic dancers win big in private arbitration)]
  • “Regulating the Modern Workforce,” Federalist Society Regulatory Transparency Project symposium video with James C. Cooper, Clark Neily, Ryan Nunn, Gabriel Scheffler, John Yun;
  • “Consumers do not have the option of abandoning unionized public services if they become too expensive and inefficient, as they can do with unionized services in the private sector.” [Chris Edwards, Cato on Janus v. AFSCME]

Labor law roundup

  • “I’m lovin’ it: McDonald’s settles joint employer case with NLRB” [Jon Hyman] Will NLRB junk its joint employer doctrine once and for all? [Scott Shackford, Reason, in December] String of welcome NLRB rulings on other topics in late 2017 [Sharon Block, On Labor, who should not be held responsible for my evaluation of the decisions as welcome] More: Connor Wolf, Inside Sources;
  • Union opt-out window at U.S. Dept. of Education will be open more than one 48-hour period per year [Frederick Hess and Grant Addison, AEI] Spot the logical flaw: claim that Janus and Masterpiece Cakeshop cases could combine to create new First Amendment right for public school teachers to strike [Andrew Strom, On Labor]
  • Eighth Circuit: federal labor law doesn’t protect workers against firing over IWW flyer-posting campaign falsely claiming restaurant’s food is unsafe IWW black cat[Daniel Pasternak, Employment Law Worldview; earlier here and here on Jimmy John’s/MikLin dispute]
  • Mark Pulliam remembers a giant of labor law, Prof. Sylvester Petro [Misrule of Law]
  • In Britain, Royal Mail cooperates with some of its union locals after they vote not to deliver Mr. Murdoch’s Sun paper to homes [Adam Withnall, Independent]
  • One libertarian economist’s view of right to work laws [David R. Henderson] Municipal home rule ventures into labor regulation can work both ways: “Local Right-to-Work Case Has National Implications” [Connor Wolf, Inside Sources on Lincolnshire, Ill. RTW ordinance before Seventh Circuit]

February 28 roundup

Public employment roundup