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Posted on Monday, August 27, 2018

Public Unions vs. Freedom of Speech and Freedom of Association

Janus v. American Federation of State, County, and Municipal Employees, Council 31, ___ U.S. ___, No. 16-1466 (27 June 2018)

Which is more important: First Amendment guarantees of freedom of speech and freedom of association or the funding of public employee unions?  When can freedom of speech and freedom of association be compromised to help a union?  The Court split five-to-four in Janus v. American Federation of State, County, and Municipal Employees, Council 31, which is a dispute over whether a state government can require a public employee to pay fees to a union that he does not want to join and with which he disagrees on important issues.  The Supreme Court held that if a public employee declines to join a union, then a state cannot require the employee to pay a so-called “agency fee” to the union.

“It is amazing how, when the heart has already made a decision, reason only supplies every possible reassurance.”  That insight is from Svetlana Alliluyeva, Joseph Stalin’s daughter.  Court opinions are filled with complex reasoning, legal citations, references to history and precedents, syllogisms, and so forth.  Is all that really just a mask for what the heart has already decided?  Was that true in Janus?  Is it a coincidence that the five justices in the majority are all Republicans and the four justices in the minority are all Democrats?  Is it a coincidence that unions almost always endorse Democratic Party candidates and rarely endorse Republican candidates?  Does the decision in Janus really hinge on legal reasoning, or is there something deeper behind the decision?  Janus is a case in which an employee’s rights to free speech and association collided with the union’s interest in maximizing its funds.  Were the justices’ visceral feelings about the relative importance of union activities compared with First Amendment freedoms the real basis for the decision?

The American Federation of State, County, and Municipal Employees, Council 31 (“the union”) represents approximately 35,000 public employees in the State of Illinois.  Under Illinois law, if a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all employees.  Employees in the unit are not obligated to join the union, but whether they join or not, the union is their sole permitted representative.  Once a union is so designated, it is vested with broad authority.  Only the union may negotiate with the employer on matters relating to wages, hours, and other conditions of employment.  This authority extends to so-called policy matters, such as merit pay, size of the work force, layoffs, privatization, promotion methods, and non-discrimination policies.  Designating a union as the exclusive representative substantially restricts the rights of individual employees.  Among other things, this designation means that individual employees may not be represented by any agent other than the designated union; nor may an individual negotiate directly with her employer.  In addition, public employee unions are concerned with much more than wages, hours, working conditions, and grievances.  They are a potent political force, and endorse and contribute money to candidates for public office.  They promote political and ideological policies on a wide range of issues.

In 1977, the Supreme Court held that employees who choose not to join the union may be charged for the portion of union dues attributable to activities that are germane to the union’s duties as collective bargaining representative, but nonmembers may not be required to fund the union’s political and ideological projects.  Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977).  In labor law parlance, the expenses in the first category are known as “chargeable” expenditures, while those in the latter are labeled “nonchargeable.”  The line between chargeable and nonchargeable expenses is not precise.  The fees paid by nonmembers are called “agency fees.”

In Janus, the union charged nonmembers, not just for the cost of collective bargaining per se, but also for many other supposedly connected activities, such as lobbying, social and recreational activities, advertising, membership meetings and conventions, and litigation, as well as other unspecified services that might ultimately inure to the benefit of the members of the local bargaining unit.  In Janus, the total chargeable amount for nonmembers was 78.06% of full union dues.

In recent years, the Court has questioned the analysis of Abood and suggested that the holding in Abood is an anomaly. Knox v. Service Employees, 567 U.S. 298, 311 (2012); Harris v. Quinn, 573 U.S. ___, ___ (2014)(slip op. at 19-20).

The Supreme Court has previously said that free speech is essential to our democratic form of government. Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).  Freedom of speech includes both the right to speak freely and the right to refrain from speaking at all. Wooley v. Maynard, 430 U.S. 705, 714 (1977).  The right to eschew association for expressive purposes is likewise protected. Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984).  Whenever the government prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends.  Individuals are coerced into betraying their convictions.

Agency fees unwillingly paid to the union by nonmembers are compelled subsidization of speech with which the nonmember disagrees.  Because compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed and needs careful review.  In Janus, the Court applied so-called “exacting scrutiny,” which is more demanding than rational basis review and less demanding than strict scrutiny.  Under exacting scrutiny, compelled subsidization of speech is lawful only if it serves a compelling state interest and the state cannot achieve that interest through means that are significantly less restrictive of speech and associational freedoms.

The union’s main defense of the agency fee arrangement is that it serves the state’s interest in labor peace, and designating the union as exclusive bargaining representative is inextricably linked to the exaction of agency fees.  The union argued: (1) labor peace is a compelling state interest; (2) there can be labor peace only if the union is designated as the exclusive bargaining representative; and (3) a union can function as the exclusive bargaining representative only if it can collect agency fees from nonmembers.  Therefore, unions must be allowed to collect agency fees from employees who are not members of the union.

The Supreme Court rejected the third premise of the union’s argument.  The Court said that unions can function as the excusive bargaining agent even if they do not collect agency fees.  According to the Court, it is simply not true that unions will refuse to serve as the exclusive representative of all employees if they are not given agency fees.  Exclusive representative status is avidly sought by unions, and the benefits to the union from that status outweigh the requirement to represent all employees.  By comparison, under federal law, a union chosen by majority vote is designated as the exclusive representative of all employees, but federal law does not permit agency fees.  Nevertheless, federal employee unions flourish.  Nearly a million federal employees – about 27% of the federal workforce – are union members.  The situation is the same for Postal Service employees who are not required to pay agency fees, and about 400,000 are union members.  The duty of fair representation of all employees, including nonmembers, does not significantly increase a union’s expenses.

The union also argued that the state had a compelling interest in preventing free riders.  The Court rejected the argument as inconsistent with the First Amendment, stating that the “petitioner . . . is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.”

The union also tried to frame an argument based on Pickering v. Board of Ed. of Township High School Dist. 205, Will City, 391 U.S. 563 (1968).  In Pickering, the Court held that a school district violated the First Amendment by firing a teacher for writing a letter critical of school administration.  Under Pickering and later cases, employee speech is largely unprotected if it is part of what the employee is paid to do, Garcetti v. Ceballos, 547 U.S. 410, 412-422 (2006).  In Janus, the union implausibly argued that the union’s activities, funded in part by the agency fees paid by nonmembers, is really government speech: that is, speech that the employee is paid to do under the Garcetti standard.  The Court was unimpressed with that argument.  Union speech in the context of collective bargaining and grievance proceedings is not employee speech as in Garcetti; it is not speech pursuant to the employee’s official duties.  The union’s argument distorts collective bargaining and grievance proceedings beyond recognition.

Pickering held that if a public employee speaks as a private citizen on a matter of public concern, then the government may restrict the employee’s speech only if the government’s interest in promoting efficient public service through its employees outweighs the employee’s interest in speaking on a matter of public concern.  The union argued that Pickering does not limit the government’s right to restrict an employee’s speech on a matter of only private concern.  The union contended that the speech funded by agency fees involves a matter of only private concern, because bargaining over wages, hours and working conditions is a private matter.  Therefore, under Pickering, the employee’s First Amendment rights may be restricted.

The Court disagreed.  Union speech paid for by agency fees is not a private concern.  It is impossible to argue that the level of state spending for employee benefits is not a matter of great public concern.  In addition to affecting how public money is spent, union speech in collective bargaining addresses many other important matters: for example, unions express views on a wide range of subjects such as education, healthcare, child welfare, the environment, and so forth.  These are matters of public concern.

Finally, the union argued that the State has a compelling interest in bargaining with an adequately funded union.  The Court rejected this anemic argument.  It is doubtful that the State has such an interest, but in any case, under exacting scrutiny, the purported interest is not compelling and does not outweigh an employee’s First Amendment rights of free speech and association.

The Court devoted several pages to discussing why the doctrine of stare decisis does not preclude overruling Abood.  The Court identified five important factors to be considered when deciding whether to overrule Abood — the quality of the reasoning in Abood; the workability of the rule established by Abood; the consistency with other related decisions; developments since Abood was decided; and reliance on the Abood decision.  In the interest of brevity, I will not try to summarize that lengthy discussion.  The bottom line is that the Court decided that stare decisis does not preclude overruling Abood.

Justice Kagan’s dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, focused mainly on the reliance element of stare decisis and accused the majority of subverting all known principles of stare decisis.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at JPolk@BerenzweigLaw.com.