The Right Is Trying to Bring Down Public Sector Unions. It May Bring Much More Down With It.

Originally published in The Intercept on February 25, 2018.
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In the middle of last week, Dixon O’Brien, a 60-year-old engineer, and his union, the International Union of Operating Engineers Local 150, quietly filed a federal lawsuit against Lincolnshire, a village in a northern suburb of Chicago. Together they raised issue with Lincolnshire officials using taxpayer dollars to fund a statewide lobbying group, the Illinois Municipal League, which advocates for things like limiting collective bargaining and reducing pension benefits. “O’Brien objects to the use of his tax money to fund private organizations that lobby and/or engage in other political activities that run directly against his economic interests and his political beliefs,” the complaint reads.

On Thursday, the head of the same union filed a federal lawsuit against Illinois Gov. Bruce Rauner, challenging portions of state law that requires unions to provide representational services to non-dues paying members. “It is absurd that state law forces unions to provide equal representation and service to public sector workers who are not members and pay nothing toward associated costs,” said union President James Sweeney in a statement.

And then on Friday, the International Union of Operating Engineers Locals 139 and 420 filed a federal lawsuit against Wisconsin Gov. Scott Walker, challenging a law he signed in 2011 that dramatically restricts public employee collective bargaining rights. The unions argue that the law’s restrictions impinge upon their protected free speech rights under the First Amendment.

These three consecutive lawsuits are a warning to the Supreme Court that if it buys into an extreme conservative argument being used to undermine labor unions, the justices are going to take a lot more than just agency fees down with them.

On Monday the Supreme Court will hear oral arguments in Janus v. AFSCME, Council 31 – a case experts have long predicted could strike a mortal blow to public sector unions. The plaintiff, an Illinois state worker named Mark Janus, has argued that he has a First Amendment right to avoid paying anything to a union that bargains on his behalf. With the current ideological leanings of the court, the plaintiff — and the conservative groups backing his lawsuit — face strong odds of victory.

But while most of the media has focused on the fact that the Janus case stands to decimate union coffers – and by extension, Democratic Party coffers – some labor activists and legal scholars have begun sounding the alarm on what they say would be the unintended consequences of the suit, effectively opening up the floodgates for countless lawsuits like the recent ones filed by the International Union of Operating Engineers. If Mark Janus doesn’t have to pay his agency fees because collective bargaining is speech he disagrees with, then collective bargaining is speech. And it can’t be restricted. Indeed, when some of the lazier advocates of Janus lay out the case, they accidentally argue on behalf of  unions’ right to free speech. “Because government is both employer and policymaker, collect­ive bargaining by the union is inherently political advocacy and indistinguishable from lobbying,” wrote George Will on Sunday, directly implicating the First Amendment.

For more than 40 years, the Supreme Court has held that there’s a constitutional difference between a union’s political activities and its collective bargaining work. Compelling workers to fund the former would infringe on their freedom of speech, the court ruled in the 1977. But under current law, collective bargaining is different. Imposing conditions, such as requiring mandatory dues, or limiting the scope of their negotiations to wages and benefits, is fair game.

If the Janus plaintiffs win their case, this critical distinction would be dismantled. (A decision is expected by June, when the court’s term ends.) A union’s bargaining and political lobbying would be treated the same — as protected free speech. In other words, the court would actually be elevating the free speech standards of bargaining. That, in turn, could bring with it new legal protections.

“If the plaintiffs are right that collective bargaining is political speech indistinguishable from lobbying, well, the flip side of that coin is that that protected free speech can’t be restricted,” said Ed Maher, a spokesperson for the International Union of Operating Engineers. “We don’t think this has been thoughtfully considered by the plaintiffs, and it is our belief that a win for Janus will open a tremendous Pandora’s box.”

This Pandora’s box, Maher suggested to The Intercept, holds all sorts of chaotic possibilities for the U.S. legal system and state governments across the country. Nearly all states impose some form of restriction on collective bargaining, limiting who can bargain and what workers can bargain over. If the Janus plaintiffs win in court, the theory goes, then workers could start bringing First Amendment challenges to limitations on their bargaining rights, like the restrictions Walker, the Wisconsin governor, passed in 2011.

And, as the three cases filed last week demonstrate, they’ve already started.

Courts have long sought to avoid applying First Amendment rights to unions. From the earliest court decisions that concerned worker protests in the 19th century, as labor writer and strategist Shaun Richman has written, judges have tended to treat unions “as criminal conspiracies that interfere with employers’ property and contract rights.” And while courts have chipped away further at the free speech rights of workers and unions over the last half-century, they have also expanded the free speech protections afforded to employers and corporations.

Ann C. Hodges, a labor law professor at the University of Richmond agrees that a win for the Janus plaintiffs could invite all sorts of new legal challenges. Writing recently for the American Constitution Society, Hodges said:

Courts have regularly ruled that states like Wisconsin can provide collective bargaining rights to some groups of employees and not others, using the rational basis test to find no equal protection violation… But if all union activity is protected political speech, then these distinctions implicate fundamental rights, invoking strict scrutiny for such classifications. Thus, the differential treatment of employee groups by the states may not survive. Indeed, unions may even have an argument that there is a constitutional right to collective bargaining.

Equally unlikely to survive are many governmental employer restrictions on employee speech. A long line of cases allows government employers to impose various restrictions on employee speech. The Supreme Court distinguishes employee from citizen speech, permitting employers to limit and control employee speech in the interests of the government as employer… A ruling in favor of the Janus plaintiffs could obliterate the distinction, requiring employers to tolerate much unwanted speech by their employees.

Some left activists remain understandably skeptical that Janus could lead to some interesting or even good opportunities for labor, arguing, as Richman wrote, that a judiciary that “that could buy such a craven argument as Janus will refuse to take the precedent to its logical conclusion and shamelessly waving away workers’ free speech rights.” But if the anti-Trump backlash leads to a wave of liberal judge appointments, the legal landscape could grow significantly more friendly for unions over the next few election cycles. Plus, unless Janus ends with an extremely narrow ruling, it would be a while before the Supreme Court could really stamp out all the knock-on cases, even if it wanted to. In other words, legal chaos could reign for years in the lower courts.

Richman goes so far as to say that Janus “could hand new liberal majorities a roadmap for restoring a legal balance of power between corporations and workers.” Or, as Sweeney of Local 150 puts it, “The free speech rights being invoked by the union-busters behind Janus work both ways.”

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California Teachers Unions Push for Cushion Before Upcoming SCOTUS Case

Originally published in The American Prospect’s Tapped blog on September 8, 2015.
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This fall, the Supreme Court will hear arguments in Friedrichs v. California Teachers Association, a case that could severely weaken the power of public-sector unions. The justices will decide whether such unions can charge “agency fees” (also known as “fair share fees”) to individuals who wish to dissociate with their union’s political lobbying but still benefit from workplace collective bargaining.

These reduced annual dues help stave off “free riders”—those who enjoy the advantages of union membership without financially contributing to the union’s work. The case’s lead plaintiff, Orange County teacher Rebecca Friedrichs, insists her free-speech rights are denied by paying agency fees, and argues that unions won’t actually suffer if she wins in court. “It’s hard for me to describe,” she told The Washington Post. “I just want liberty. I want to stop this silencing of my voice and the silencing of millions of teachers out there.”

As the Prospect’s Justin Miller put it, “the Friedrichs case has the potential to overturn decades of legal precedent [since 1977] that has become intractably embedded in union strategy—and state law.”

In the meantime, The Sacramento Bee reported that teacher unions in California are pushing Governor Jerry Brown to embrace a last-minute measure that would permit unions to address all new teachers during their orientations. Such conversations could help unions recruit new members, and thereby mitigate the negative effects of an unfavorable ruling in Friedrichs. As reporter Christopher Cadelago wrote:

Up against the clock in the Legislature, the labor groups are pushing for a bill that could give unions some time—a half-hour—to meet with employees to voice the benefits of union participation. That, some believe, could prevent workers from fully withdrawing from their ranks if the court rules against fair share fees.

One version of the teacher unions’ bill is “nearly identical” to a California bill that grants unions up to 30 minutes to speak to new home health-care workers during their orientation period. That law was passed shortly after the Supreme Court’s 2014 Harris v. Quinn ruling, which said that Illinois home health-care workers could not be required to pay agency fees. (Harris v. Quinn avoided the free-speech questions that will be considered in Friedrichs.)

Groups like the Association of California School Administrators, the California Association of School Business Officials, and the California Special Districts Association say that bills like the ones proposed by the teacher unions should be considered only after the Supreme Court makes its final decision in Friedrichs, and only when there is more time available for public comment.

I’d guess that if California legislators were planning on supporting a bill like this, they’d wait until after the Friedrichs decision came down, just as the home health-care worker bill passed after the Harris case was decided. Either way, we won’t have to speculate for much longer, because California’s legislative session ends this week.