On June 27, 2018, the U.S. Supreme Court, by a vote of 5-4, ruled in Janus that a provision of the Illinois Public Labor Relations Act which allowed public employee Unions to negotiate “fair share fees” violated the First Amendment rights and the right to free Association of public employees (see also Ohio Revised Code 4117 ). In doing so, the Court split along strictly partisan lines, and overturned a 1977 decision known as Abood . In Abood, the Court ruled unanimously, that such provisions did not violate the First Amendment rights and rights to free Association of public employees. In Abood, the Court followed long standing precedent related to NLRA and Taft-Hartley and drew a line between the ideological and political activities of Unions, and those activities which are directly related to the Union’s main task of collective bargaining and contract enforcement. Abood was a compromise which had worked for over 50 years and struck a balance between the rights of the workers Unions are legally obligated to represent, and the rights of those workers to not advocate for causes they object to as a condition of their employment.
Some background here may help. Taft-Hartley, allowed states to pass so called “right to work laws” which prohibits the collection of agency fees (28 states currently have such laws). However, in the absence of such laws, Unions may negotiate for agency fees. Since NLRA covers private sector employees, public employees bargain under state statute as referenced above. In other words, the state legislatures of multiple states have passed laws which expressly allow for the public sector Union to negotiate for fair share fees. The rationale for such fees is clear and relates to long standing principles of the laws governing collective bargaining in both the public and private sector: e.g. Unions are elected, under a supervised vote, by majority rule, to be the exclusive bargaining agent in the workplace for a particular group of employees. As the sole and exclusive representative, Unions must represent all employees equally, which is referred to as the Duty of Fair Representation. Doing so requires a significant of time, energy and money on behalf of the Union. Since those costs must be borne by the Union regardless of whether a worker is a member or not, there is a strong incentive to “free ride” and get the benefits without paying. One way to think about this is that it is similar to refusing to pay for a fire department, and then requiring the fire department to put out all fires, regardless of whether the fire protection fee was paid or not and demanding the fire department save your house. Fair share fees are a way for the Union to cover the costs of representing workers while allowing workers to opt out of paying for political and ideological activities of the Union.
The argument in Janus however is that there is no such line as all activities of a public sector Union are inherently political. By virtue of negotiating for higher salaries, pension benefits or health insurance benefits, the Union is engaging in speech that is supportive of public sector expenditures. In Illinois, as in other states, the governor has been embroiled in a battle to trim the public sector and not surprisingly, has faced opposition from public sector Unions. The governor found an ally when a public sector worker, Janus, filed suit objecting to paying fair share fees. According to Janus, his payment of agency fees meant that he was forced, as a condition of employment, to adopt a political position with which he disagreed. The Court agreed and overturned the long standing compromise struck in Abood.
Amongst conservatives, the case for being allowed to “free ride” sometimes borders on the absurd. In a recent post on the conservative website The Federalist a public teacher celebrates her new found freedom from the Union. While acknowledging that in the absence of a Union, public school teachers often face arbitrary and capricious actions from school administrators, one teacher bemoans the Union’s failure to gain merit pay to reward superior teachers. Presumably, this teacher believes, that absent the Union she will be able to negotiate for significantly higher salary than her counterparts due to her superior lesson plans. But these are faulty assumptions. Teachers in non-Union states do not generally get higher salaries than their counterparts. Nor do school boards and administrators, when freed from the restrictions of a Union contract, suddenly decided to seek out a few star teachers to be rewarded. The problems with merit pay would require at least a separate blog but if nothing else, that merit pay has come to mean tying teachers’ salaries to test scores should be sufficient to give even the most ardent free marketeer pause about the advisability of merit pay. That said, as I discuss later on, nothing prevents this teacher from joining with her fellow teachers and using the democratic process in the Union to negotiate a different kind of collective bargaining agreement.
But more to the point, it is unusual for the Court to overturn 50 year old precedents. When one thinks of the major reversals in Supreme Court history or those occasions when the Court struck out in new directions, the underlying premise had come to be viewed as odious and at the same time, other precedents had chipped away at previous rulings. In this case, the ruling is a bit of a bolt out of the blue. It is sudden, it goes against longstanding precedent in related areas and the argument of the court does not support the conclusion. The argument of the majority in this case was that the line between money paid for bargaining related issues and political activity had become blurred. This ignored the fact that fair share fee payers have venues for appeal. But rather than showing deference to state legislatures and precedent, the Court engaged in what can best be described as conservative judicial activism. Where the Court could have engaged in surgery and directed states to provide better definition, the Court instead found that it is simply not possible for any such line to be drawn at all. Instead, the Court took a near absolutist stance on the First Amendment rights of public employees. But, as a self confessed First Amendment absolutist (or as close as one get it) I’m not celebrating. And her again, the gang of five is undermining it’s own reasoning in other cases.
The matter is admittedly tangled and the briefs in opposition to Janus, as well as the minority, may perhaps only have further confused the issue. Allow me to attempt an untangling. There are many reasons, in my opinion, to be quite critical of how the Federal Courts and the Supreme Court have treated the First Amendment rights of public employees: in sum, the Supreme Court ruled in Garcetti that when public employees speak in their capacity as public employees, or in other words, when they are doing their job and their job involves some kind of speech, the employee has no First Amendment rights. As an aside, it should be noted, that Garcetti does not necessarily apply to public Universities and Colleges and that academic freedom may be and often is protected by other means. But I digress: One may agree or disagree with Garcetti ( it is in my view a horrible opinion), one may wish to see Garcetti overturned (as I do), but that it is inconsistent in the extreme to say as the conservative Justices who voted to overturn Abood and also voted in favor of Garcetti are saying, the First Amendment rights of public employees to speak or not to speak on their conditions of employment are near sacrosanct but that they actually have no First Amendment rights to speak in their capacity as public employees. It is this willingness of the gang of five to find a special carve out as a means of invalidating 28 state statutes and long standing precedent, when that decision coincidentally supports partisan campaigns against public sector Unions which has given rise to the accusation by the dissenters in this case that the majority has now weaponized the First Amendment, an issue I hope to take up in a later post.
For now, at the risk of taxing the patience of my readers due to the length of this post, it should also be noted that in its decision (as well as the dissent) the ability of Unions to actually enhance the free speech rights of public sector employees has gone entirely unmentioned. To understand this, we need to look briefly at two cases which precede Garcetti (Connick and Churchill ). In both these cases the Court upheld the right of a public sector employer to discipline a public sector employee for criticizing their conditions of employment. In other words, the Court has expressly rejected the view, albeit wrongly in my view, that the operations of a public employer are inherently political. However, had Connick or Churchill been members of Union, or, if they had acted in concert with other employees, their speech would likely have been protected as “concerted activity”, or, they may have been protected under “just cause” provisions of a Union contract. But And here again, it is instructive to point to the overlap of conservative Justices voting against First Amendment protections of public employees, and then finding it sacrosanct when politically convenient. Again, this dichotomy is an issue I hope to return to in a later blog post.
But Unions also contribute to the free speech rights of public employees in another way. In spite of the hype about “Union bosses”, Unions are imperfect democracies. They are imperfect because they are composed of human beings but they are democracies because matters are decided by their members. If you are unhappy with your Union’s priorities in bargaining, if you think your Union is too liberal, if you are unhappy with the candidates they endorse or the issues they choose to lobby on, you and your fellow members can combine, criticize, publicize, run for Union office, and if you are able to convince your fellow employees of the rightness of your position, you can change your Union.
Disclaimer: the views expressed in this post are my own personal opinions and should not be construed as necessarily representative of any organization or any other person. In the interest of full disclosure I note that I am the immediate past President of the Shawnee Education Association, a position which I held for nearly six years, and I am currently the grievance committee chair of the Shawnee Education Association, an affiliate of the Ohio Education Association and the National Education Association.
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