Janus v. AFSCME Council 31: A Crippling Blow for Public-Sector Unions? Part I

Right-to-work laws do not literally give someone the “right to work.” Rather, they prohibit union security agreements in the workplace. This means that in states that have these laws, employees that have a union in their workplace are not required to pay, as a condition of employment, any union dues or agency (also called fair-share) fees to cover the costs of union representation.

The debate surrounding right-to-work laws is one of the most politically-charged legal issues of our day. Proponents of the laws believe that they create a better business climate and give employees the freedom of whether or not to associate with and financially support the union in their workplace. Opponents contend that the laws create a “free-riding” problem, where non-union employees receive but do not have to pay for the benefits and services that the union provides for dues paying union employees in the workplace; infringe upon the freedom of contract by preventing union security agreements; and lower wages due to weaker unions.

Right-to-work laws are currently in effect in 28 states. In the other 22 states that allow union security (also called agency shop) agreements – New York being one of them — workers who are not members of the union in their workplace are required at minimum to pay agency fees to the union to cover the costs of collective-bargaining, grievance adjustment, and contract administration (in other words, any service related to the terms and conditions of employment).

In turn, the union is required by law, under its duty of fair representation as the exclusive bargaining representative, to represent all workers equally in the bargaining unit, regardless of their union membership status. While full dues paid by union members can be used for both activities related to the terms and conditions of their employment, as well as political activities undertaken by the union, agency/fair share fees cannot be used for political and ideological purposes.

With respect to a general overview, the law governing unions in the workplace can be broken down into private sector and public sector. The National Labor Relations Act (“NLRA”) covers collective-bargaining rights in the private-sector, and Section 14(b) of the NLRA allows states to have right-to-work laws. The Railway Labor Act (“RLA”) is analogous for the most part to the NLRA, but a key distinction is that it prohibits state right-to-work laws from applying to the railway and airline industries.

Public-sector labor law is primarily state-based: while the right of public-sector employees to organize and collectively-bargain is protected by the First Amendment, states with right-to-work laws can apply them to state and local public employees. Note that federal employees work in what is known as an “open shop” arrangement (which means that right-to-work applies to them, regardless of which state they work in).

The agency shop in the public-sector was unanimously upheld to be constitutional under the First Amendment in the seminal 1977 Supreme Court decision Abood v. Detroit Board of Education. Here, in upholding the constitutionality of agency fees, the Supreme Court struck the appropriate balance of requiring workers to pay for services that they receive from the union in the context of the terms and conditions of their employment, while also respecting an individual’s First Amendment rights of freedom of association (no requirement for workers to join the union in order to work) and free speech (workers are not required to pay for the union’s political activities that they disagree with).

However, recent Supreme Court cases have threatened to put the forty year old Abood consensus in jeopardy. Writing for the majority, Justice Alito called Abood “questionable on several grounds” and “troubling” in Harris v. Quinn, a 2014 case which carved out an exception to the agency shop rule for what the Court deemed “quasi-public employees,” such as the petitioners who were home healthcare aides for family members, and were paid by Medicaid.

In 2016, subsequent to Justice Scalia’s sudden death, a complete overturn of Abood was averted when the Court deadlocked 4-4 in Freidrichs v. California Teachers’ Ass’n, which had the effect of upholding the Abood precedent.

Janus v. AFSCME Council 31 presents the same question as Freidrichs, and is now pending before the Supreme Court. This could very well overturn Abood, ending agency fees in the public-sector. Neil Gorsuch, appointed to replace the late Scalia, will prove pivotal in breaking the deadlock.

Part II of this blog will follow with an analysis of the Janus case.

By: Kenneth St. John December 19, 2017