Continuing Legal Education Materials
by Kendra Sena, the Government Law Center's Senior Staff Attorney.
Bruce Gyory, senior advisor at Manatt, Phelps, & Phillips and a member of the Government Law Center's Advisory Board, organized and moderated a discussion of Janus v. AFSCME, a case awaiting a decision from the Supreme Court of the United States that has the potential to dramatically change the public labor sector. Gyory described the case as the "perfect" Anderson topic: meaty in its jurisprudence and significant in both politics and governance. The discussion that followed proved that statement true.
Associate Dean and Professor of Law at Albany Law School Rosemary Queenan explained the issue in the case: whether public-sector unions may collect "agency fees" from nonmembers who benefit from the collective bargaining efforts of the union. Queenan explained that the Court upheld the system in Abood v. Detroit Board of Education (1977), and considered it again in Friedrichs v. California Teachers Association (2016) after going around the issue in Harris v. Quinn (2014). In Friedrichs, the Court seemed poised to overturn Abood, but the death of Justice Antonin Scalia left the Court deadlocked and the lower court ruling in place. Janus represents the fourth time the Court will consider the issue of public-sector union agency fees, and the decision may turn on any number of legal arguments: (1) whether the collection of such fees is compelled speech, violating the First Amendment; (2) whether Abood should be overturned; (3) at what level of scrutiny should the Court evaluate the claim; and (4) whether the Court lacks subject matter jurisdiction to hear the case at all.
Having laid the foundation for Janus, the panel turned to debate. Ken Girardin, Policy Analyst at the Empire Center, presented two central arguments in favor of overturning Abood. First, he explained, the Court in Abood drew a distinction between the collective bargaining activities of a union and the union's political or ideological activities, only the former of which were held to be a permissible use of agency fees. Girardin argued that the distinction is unworkable because all public-sector union activities are by their nature political activities; because public-sector unions influence how public money is spent, all union activity has a direct impact on public policy. He noted that in oral argument Justice Kennedy asked the union's lawyer if ruling against the union would lower the union's political influence. When counsel replied that it would, the Justice asked, "Isn't that the end of this case?"
Second, said Girardin, Abood was decided in the context of massive labor protests and work stoppages that supported a legitimate state interest in preserving labor peace at the expense of First Amendment protections. The climate, he said, has changed, and the agency fee structure at issue in the case is no longer necessary to preserve labor peace, nor is it compelling enough to justify limits on the First Amendment. Girardin pointed to a number of right-to-work states that have done away with agency fees and have not seen an uptick in public sector work stoppages. Rather than threatening labor peace, he argued, overturning Abood will force unions to earn the money they seek from their members, resulting in more responsive unions—a win for workers.
Richard Casagrande, formerly the General Counsel to NYSUT, disagreed with the way Girardin framed the issues. The case, said Casagrande, is a political one—part of a conservative agenda to impose right-to-work provisions nationwide. Invoking the Rev.
Dr. Martin Luther King, Casagrande warned that so-called "right-to-work" laws destroy labor unions, resulting in depressed wages, limited job opportunities, and no civil rights.
Turning to the law, Casagrande argued that when the government is acting as an employer, it is well-established that it has much more latitude to restrict the First Amendment rights of its employees than it does its citizens. He noted, for example, the right of the government-employer to limit employees' speech out of a reasonable concern for the disruption it may cause—as in the case of NYC police officers fired for off-duty racist behavior (Locurto v. Giuliani (2006)). The Janus case, Casagrande argued, will "constitutionalize" every employee grievance—an untenable consequence.
Believing that the Court will decide against the union, Casagrande predicted that unions will become more aggressive, and that we will see more work stoppages like the recent teacher strikes in West Virginia, Kentucky, and Oklahoma. He noted that while walkouts are not good for governments or taxpayers, "sometimes we have to re-learn the lesson that if you take rights from working people, they will fight back."
Girardin was skeptical. He doubted that massive work stoppages would result because, he said, other states that have eliminated agency fees have not seen that happen. Moreover, Girardin took issue with the First Amendment frame that Casagrande presented; this case, said Girardin, is about compelled speech, not limiting speech. It curbs a person's dignity, argued Girardin (echoing Justice Alito), to compel speech and so it deserves greater protection.
The case will have a huge impact in New York and across the country. Queenan noted that 23 states have agency fee statutes and thousands of collective bargaining agreements include agency fee clauses. She raised the question of severability in light of the dramatic number of statutes and contracts that stand to be invalidated by the ruling. In New York, Queenan said, the state legislature has amended the Taylor Law, the state statute governing public-sector collective bargaining. Anticipating a ruling against the union in Janus, the amendments most notably relieve the responsibility of public-sector unions to represent nonmembers in grievances beyond those negotiated in the collective bargaining agreement.
Gyory and members of the audience challenged the panelists to predict unintended consequences of the anticipated ruling, including whether the change would result in industry-wide shutdowns as seen in France, or multi-tiered systems of bargaining to address free riders, and even the implications for corporate speech and its effect on shareholders. We won't have long to wait for answers; the Court heard arguments in February of this year and a decision is expected next month.