Long live unions, unions are dead

Until recently, public-sector unions could mandate that employees pay the union an agency fee — which covers the costs of collective bargaining — even if that employee had opted out of union membership. In July, the Supreme Court’s decision in Janus v. AFSCME changed all that. In an opinion written by Justice Samuel Alito, the court determined that mandatory agency fees violate employees’ First Amendment rights to free speech.

There has been a lot of talk about how this ruling might be the final blow to unions’ political and lobbying power, but that interpretation ignores generations of legal history and underestimates the complexity of the questions on the table.

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Rather than being the final round in a decades-old fight, Janus is, instead, the first significant crack in the dam for a new spate of state and federal lawsuits about the role of public-sector unions and the relationships between union, worker and the government as an employer. Some of these cases already are making their way through the court system.

The first batch of lawsuits seeks to challenge the laws that states put in place to protect unions locally and insulate them from the effects of Janus. For example, in anticipation of the Janus ruling, several states passed legislation designed to protect union organizing by providing unions with special access to new employees so that they can “explain the benefits of union membership” without the employer present. Others require employers to give contact information for new employees to unions. California, in particular, has passed some of the country’s most aggressive union protection laws, but there are challenges brewing. It would not be surprising to see some of these state statutes — in California and elsewhere — taken up in federal court.

Another type of immediate follow-on litigation is from employees who have been paying the mandatory agency fees, now deemed unconstitutional. Some teachers (and their lawyers) believe they should be able to get back that money — tens, maybe hundreds of millions of dollars. As a general rule, Supreme Court rulings are not retroactive in themselves, but many have been made retroactive by simple follow-up litigation presenting questions such as this. Cases on this question have been filed across the country, and one of them likely will make it to the Supreme Court in a few years.

In addition to these efforts to augment or minimize the immediate effects of the Janus case, another set of legal challenges on the horizon poses real existential questions for public-sector unions. Employees who opt out of union membership no longer can be compelled to pay agency fees, but they nonetheless are represented by unions in collective bargaining negotiations. That’s because unions almost always are the designated exclusive representative for a bargaining unit — the entity appointed by employees to engage with the employer on behalf of all bargaining unit members.

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Individuals are starting to challenge the presumption that unions ought to be the exclusive representatives and in some states, such as Maine, they’re challenging the entire principle of exclusive representation on the same Constitutional grounds as Janus: that having any exclusive representative at all is a violation of an individual’s free expression rights. If their status as the default employee representative in labor negotiations begins to erode, public-sector unions will lose ground on one of their founding functions.

Finally, Janus has teed up a challenge to how employees become members of a union in the first place — and if that challenge is successful, its effects will be seismic. On its face, the question is straightforward: If non-members now have to opt in to paying agency fees, then why don’t employees have to opt in to joining the union in the first place? Nearly every public-agency union currently follows an opt-out membership model, meaning that new employees default into union membership unless they follow a specific, sometimes burdensome, procedure to opt out.

Janus doesn’t affect this structure; it held only that any payment of agency fees by non-members must be made by affirmative choice (as an opt-in), not by default (as an opt-out). But the logical line now snaps into focus: Shouldn’t this same “opt-in” requirement be applied to union membership, as well? And if employees have to opt in to union membership, we can anticipate a fairly precipitous drop in membership. That drop in members then makes the union vulnerable to challenges about whether it credibly can be the exclusive representative for the bargaining unit.

It has become a more fundamental question of legitimacy — particularly if (or when) unions reach the tipping point where the majority of employees have no relationship with the union at all. New legislation in Florida, and a lawsuit challenging that law, tackle this question; the state wants to require a teachers union to be effectively decertified as the exclusive representative if its membership dips below 50 percent of the employees.

There is a clear invitation here: the Supreme Court is prepared to hear a challenge to the opt-out process that unions use to gather members in the first place. It will come, and when it does, the consequences will be far greater than those of Janus. This next lawsuit is the one that unions are afraid of — the one that could be the beginning of the end.

Hailly T.N. Korman is a senior associate partner at Bellwether Education Partners, a nonprofit organization focused on changing education and life outcomes for underserved children. Previously, she was an attorney at Morrison & Foerster LLP, where she served as pro bono counsel in Reed v. State of California, representing student plaintiffs at underperforming Los Angeles public schools challenging the constitutionality of strict reverse-seniority layoffs.