The Janus decision should not be a surprise

By Karen Federman Henry

Two years ago, we awaited the appointment of a successor to the empty seat on the U.S. Supreme Court that resulted from the death of Justice Scalia. An early casualty of a tie votes occurred in Friedrichs v. California Teachers Association, No. 14-915. Many public employers and employees had their eyes on the case, which involved the California Teachers Association, because its outcome had the potential to alter the relationship between public employees and their union representatives that has existed since the 1970s.

The case involved a suit filed by the California teachers—all public employees—challenging the longstanding practice of requiring the teachers to pay a fee for the union representation, regardless of whether the teacher agreed with the positions asserted by the union. The practice was authorized by prior Supreme Court cases almost 40 years ago, with only periodic challenges. See Abood v. Detroit Board of Education, 431 U.S. 209 (1977). The California case raised an issue of whether requiring the payment of the fee violated the teachers’ rights of free speech and association under the First Amendment, because they really did not have direct input regarding the union’s activities and positions on specific issues, other than voting to select the representative. The district court resolved the case on motions, and the Ninth Circuit affirmed, finding no violation of the First Amendment and relying on the earlier Supreme Court cases. The tie vote, however, yielded only a one-line order that left the decision of the Ninth Circuit Court of Appeals intact along with the existing precedent from the 1970s and 1980s.

This year, with a full complement of justices on the Supreme Court, a new vehicle for reconsidering the Court’s decision in Abood arrived. In Janus v. AFSCME, No. 16-1466, the Supreme Court held that both union and non-union employees must consent to their government employer’s withholding of union dues or fees from their compensation. The analysis focused on employees’ First Amendment right to freedom of association and freedom of speech. In doing so, the Court gave more weight to the inequity of a public employee being required to pay a fee to a union representative that the employee does not feel represents that person’s individual interests. Left unanswered is the question of how a union representative can provide services if the funding is inadequate for the task and there is no ongoing source to replenish it.

After the Court’s failure to alter the past practice in Friedrichs, it should come as no surprise that Janus provided an opportunity to revisit the issue. As state and local governments are reviewing their collective bargaining agreements to discern areas in need of renegotiation, and many are revisiting their orientation programs for new employees to establish a clearer consent option for employees to join or decline to join a collective bargaining unit, only time will tell whether collective bargaining will remain in place or will atrophy from reduced funding.

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