Janus v. AFSCME Decision

Before speculating on what this will do to union membership and multiemployer plans let’s read the Supreme Court opinion. I see a basic flaw in both arguments that I will present in the next blog but, for now, here are some excerpts that I found pertinent:


Non-members are required to pay what is generally called an “agency fee,” i.e. , a percentage of the full union dues. Under Abood v. Detroit Bd. of Ed. , 431 U. S. 209, 235–236, this fee may cover union expenditures attributable to those activities “germane” to the union’s collective-bargaining activities (chargeable expenditures), but may not cover the union’s political and ideological projects (nonchargeable expenditures). The union sets the agency fee annually and then sends non-members a notice explaining the basis for the fee and the breakdown of expenditures. Here it was 78.06% of full union dues. (page 1)

For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. (page 5)

Alito For the Court:

After the amount of the agency fee is fixed each year, the union must send nonmembers what is known as a Hudson notice. See Teachers v. Hudson, 475 U. S. 292 (1986). This notice is supposed to provide nonmembers with “an adequate explanation of the basis for the [agency] fee.” Id. , at 310. If nonmembers “suspect that a union has improperly put certain expenses in the [chargeable] cate­gory,” they may challenge that determination. (page 9)

Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues—say, the platform of one of the major political parties. No on e, we trust, would seriously argue that the First Amendment permits this. (page 13)

The federal employment experience is illustrative. Under federal law, a union chosen by majority vote is designated as the exclusive representative of all the em­ployees, but federal law does not permit agency fees. See 5 U. S. C. §§7102, 7111(a), 7114(a). Nevertheless, nearly a million federal employees—about 27% of the federal workforce—are union members. The situation in the Postal Service is similar. Although permitted to choose an exclu­sive representative, Postal Service employees are not required to pay an agency fee, 39 U. S. C. §§1203(a), 1209(c), and about 400,000 are union members. Like­wise, millions of public employees in the 28 States that have laws generally prohibiting agency fees are represented
by unions that serve as the exclusive representatives of all the employees. (page 17)

Suppose that a particular group lobbies or speaks out on behalf of what it thinks are the needs of senior citizens or veterans or physicians, to take just a few examples. Could the government require that all seniors, veterans, or doctors pay for that service even if they object? (page 18)

As of 2013, Illinois had nearly $160 billion in unfunded pension and retiree healthcare liabilities. By 2017, that number had only grown, and the State was grappling with $15 billion in unpaid bills. We are told that a “quarter of the budget is now devoted to paying down” those liabilities. These problems and others led Moody’s and S&P to downgrade Illinois’ credit rating to “one step above junk”—the “lowest ranking on record for a U. S. state.” (page 33)

Objecting employees also face a daunting and expensive task if they wish to challenge union chargeability deter­minations. While Hudson requires a union to provide nonmembers with “sufficient information to gauge the propriety of the union’s fee,” 475 U. S., at 306, the Hudson notice in the present case and in others that have come before us do not begin to permit a nonmember to make such a determination. (page 45)

We recognize that the loss of payments from nonmem­bers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the consider­able windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many bil­lions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely. (page 52)

Sotomayor Dissenting:

Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways. (page 57)

The key point about Abood is that it fit naturally with this Court’s consistent teaching about the permissibility of regulating public employees’ speech. The Court allows a government entity to regulate that expression in aid of managing its workforce to effectively provide public services. That is just what a government aims to do when it enforces a fair-share agreement. And so, the key point about today’s decision is that it creates an unjustified hole in the law, applicable to union fees alone. This case is sui generis among those addressing public employee speech—and will almost surely remain so. (page 74)

Over 20 States have by now enacted statutes authorizing fair-share provisions. To be precise, 22 States, the District of Columbia, and Puerto Rico—plus another two States for police and firefighter unions. Many of those States have multiple statutory provisions, with variations for different categories of public employees. See, e.g., Brief for State of California as Amicus Curiae 24–25. Every one of them will now need to come up with new ways—elaborated in new statutes—to structure relations between government employers and their workers. (page 78)

There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law — and in its economic life — for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy. (page 81)

53 responses to this post.

  1. “If you do not prevail in this case, the unions will have less political influence. Yes or no?” Kennedy asked union lawyer David Frederick.

    “Yes, they will have less political influence,” Frederick said.

    “Isn’t that the end of this case?” Kennedy said.

    I can guarantee you that the money (and influence) behind this decision cares naught about Janus freedom of speech, or Friedrichs “paycheck protection”.

    It’s about this…

    POWER

    Reply

    • Posted by PS Drone on June 27, 2018 at 3:53 pm

      Yes, and it’s about time that the taxpayer got some power back from the corrupt union/politician cabals that have been crookedly extorting $ from the non-connected public for decades.

      Reply

      • Posted by Tough Love on June 27, 2018 at 7:22 pm

        Well said !

        Reply

      • Posted by Stephen Douglas on June 28, 2018 at 4:48 pm

        Your fantasies of getting “power back” are amusing, or sad.

        “The broadest classification of political donors separates them into business, labor, or ideological interests. Whatever slice you look at, business interests dominate, with an overall advantage over organized labor of about 16-to-1. Even among PACs – the favored means of delivering funds by labor unions – business has a close to 7-to-1 fundraising advantage.”

        Opensecrets

        Look at the list of donors behind Janus v. AFSCME and Friedrichs v. California Teachers Ass’n. They did not spend that money to “protect the paycheck” of Friedrichs or to preserve freedom of speech for Janus. They damn sure didn’t do it to give “power back to the taxpayers”.

        Reply

    • You can’t swing a dead cat without hitting another “cabal”.

      “Powerful Public Employee Unions” is an oxymoron.

      Public Employee Unions have been playing defense for years. And not very well.

      “If you do not prevail in this case, the unions will have less political influence. Yes or no?” Kennedy asked union lawyer David Frederick.
      ————————————–
      If the unions have “less” political influence, that leaves a void. Do you think then that taxpayers will have “more” influence, Justice Kennedy?

      Justice Kennedy?

      No. Look at the money (and the “cabal”) behind Janus.

      Reply

    • Posted by Tough Love on June 27, 2018 at 7:18 pm

      Sure is …………. about the Union’s POWER to use that moeny to BRIBE our Elected Officials.

      Reply

      • Posted by Anonymous on June 27, 2018 at 9:52 pm

        What about Citizens United, the Koch Brothers and the Mercers using their private riches to buy elected officials and control policy decisions in DC and beyond?

        Reply

        • Posted by Tough Love on June 27, 2018 at 10:19 pm

          Does that make what the Public Sector Unions do fair or just ?

          Reply

          • Posted by Anonymous on June 27, 2018 at 10:43 pm

            Does the Koch Brothers using they’re millions of dollars to “influence”the selection of the next Supreme Court Justice pass your “fair and just” smell test, if so please share how so.

          • Posted by Tough Love on June 27, 2018 at 11:45 pm

            Responding to Anonymous…………

            No it doesn’t, but little has such direct financial impact on LOCAL taxpayers as the insatiable greed (and arrogant taxpayer-be-damned attitude) of Public Sector Unions/workers.

        • Posted by Stanley on June 28, 2018 at 9:29 am

          “Does the Koch Brothers using they’re millions of dollars to “influence”the selection of the next Supreme Court Justice pass your “fair and just”
          Yes, absolutely. Gorsuch is at the top of my list of Trump’s accomplishments. It is in the interest of all of us, especially the not well off, that we reverse the trend toward collectivism and restore the right to work and produce the necessaries of life. Rich people who have ideas that I cannot stand still have the right to advertise them however they choose.

          Reply

          • Posted by Anonymous on June 28, 2018 at 9:55 am

            Oh please the next breaking scandal will come from the US Supreme Court, the Trump blackmail of Kennedy because he found out about the mistress, pot calling kettle black. The state’s will step in where the federal government retreats that’s how this democracy works. Jury. hasn’t assembled on For such yet, but patience.

          • Posted by El gaupo on June 28, 2018 at 4:12 pm

            Reverse the trend toward collectivism?!? Are you fucking kidding me??? You mean the collectivism that has seen the tax rate for the wealthy plummet since the 1950’s (when we truly were an economic powerhouse with a strong middle class)? Or the collectivism that has seen CEO pay skyrocket over the last generation or two while middle class wages have stagnated.
            Maybe all these extra hours that you are volunteering as a night watchman in lieu of police are starting to cloud your judgement.

  2. Or, is there?

    Reply

    • Posted by Anonymous on June 28, 2018 at 9:35 am

      Seriously, the federal government is supported by “local taxpayers” nationwide and in the territories, policies and laws from the Whitehouse and Congress impact at the local level. Ultra rich folks buy influence at every level of government in America because it’s for sale, so your accepting is not acceptable. A pending example is that the US Treasury isn’t collecting enough revenue to support the next budget cycle beginning Oct. 1, 2018, so the social service/safety net cut rumblings begin in earnest now but North Korea is no longer a threat and according to Trump he can negotiate a relationship reset with Russia so why the huge boost in military spending. Jedi budget mind trick, the US deficit is huge and everyone must pay. When cuts are made at the federal level, state and local taxes go up, it’s all connected. Elected puppets do not get a pass.

      Reply

  3. Posted by Joel L. Frank on June 27, 2018 at 5:37 pm

    The agency fee eliminates the need for genuine collective bargaining. The employers have bought labor peace. The unions never use their ultimate weapon, the strike, because the dues will be cut off. There are no adversaries with an agency fee set up.

    Now these unions will have to earn the dues on a voluntary basis. Prove to me that you are really negotiating on my behalf and I will gladly pay my fair share.

    Reply

    • Posted by Anonymous on June 27, 2018 at 9:48 pm

      Where exactly are agency fees collected? Workplace governance and worker protections must still be provided, employers need monitoring to address issues. The unions know they took political activism too far, time to rethink the unions role in elections for public sector employees. Social media is a great mass communication source and free, level up and move forward, this is after all the 21st Century.

      Reply

  4. Posted by Joel L. Frank on June 27, 2018 at 5:47 pm

    The withholding of dues is the employee’s way of making sure the union does its job. Now, the employee can vote for new union leadership with the expectation that things will change. The agency fee eliminated all leverage the member may have had. It is a new day.

    Reply

  5. Posted by readslikeamafiabook on June 27, 2018 at 7:26 pm

    Sotomayor: Dumb Latino. Unions are 40 years past their due date.

    Reply

    • Posted by Anonymous on June 27, 2018 at 9:34 pm

      Sharing your racist/sexist views, is protected by the Constitution.

      Reply

    • Posted by Stanley on June 28, 2018 at 9:44 am

      I can understand the urge to be hurtful toward the other side, and this is one area where the lefties are world class. But, Sotomayor’s ancestry has nothing to do with her pathetically mistaken ideas. I’m not sure how much this decision will hurt unions. The colleges and universities are full of corrupt professors arguing that unions raise wages (among other foul ideas), but at least it is a step in the right direction.

      Reply

      • Posted by Anonymous on June 28, 2018 at 11:10 am

        Employers raise prices for business reasons, employees seek wage increases for personal finance reasons, balance. Employer have their message carriers so do employees.

        Reply

  6. Posted by readslikeamafiabook on June 27, 2018 at 8:18 pm

    Do you know that Unions also take out money from kids’ paychecks who work for stores? My kid was working for a clothing store at age 16 and she asked what the member dues that were arbitrarily taken out of her check and she asked for the dues to be not taken out of her check. She was told that it was mandatory. Needless to say, she is not now a democrat (nor was she a democrat when they were stealing her money at age 16). Thieves.

    Reply

    • Posted by Anonymous on June 27, 2018 at 9:38 pm

      The laws said the fees could be taken from unionized retail establishments age or the fact it was your child ( my sympathies to said child) wasn’t a factor.

      Reply

      • Posted by readslikeamafiabook on June 27, 2018 at 9:54 pm

        Glad the law was changed. Why anyone has to be forced to fork over money to an organization? The law was lawless, I know my kid’s age wasn’t a factor. I’m not looking for sympathy, but giving another point of view of how unions steal money.

        Reply

        • Posted by Anonymous on June 27, 2018 at 10:50 pm

          The law in NJ impacts less than 3000 public employees, they are represented and benefit from collective bargaining. Workplace grievances will remain a reality, someone amongst the nonpayers will experience work related strife, the choice is theirs, labor lawsuits are expensive. The union fees are tax deductible.

          Reply

          • Posted by Joel L. Frank on June 28, 2018 at 9:37 am

            The aggregate NJ public-sector workforce is about 250,000. Now they have a choice to pay union dues or withhold those dues pending union policy changes. I vote to withhold those dues and have union officials prove they are deserving of them.

        • Posted by Anonymous on June 27, 2018 at 10:52 pm

          Silence on the racist/sexist remarks noted.

          Reply

        • Posted by Anonymous on June 27, 2018 at 11:01 pm

          My sympathies were extended to your child because your comment was sexist and racist, information to combat ignorance is readily available in America, so your comment is puzzling for a parent.

          Reply

          • Posted by El gaupo on June 28, 2018 at 4:19 pm

            Honestly, this forum is not the place for sexist or racist comments. I agree w Stanley that Sotomeyer is too liberal for my tastes. And she is not fond of police However, it does not mean we should stoop to name calling especially in regards to race/gender/ethnicity.

  7. Posted by readslikeamafiabook on June 27, 2018 at 9:57 pm

    If union bosses and their members feel so strong, this ruling should have no affect on their membership fees. Why they crying bloody murder?

    Reply

  8. Posted by MJ on June 28, 2018 at 9:05 am

    Why is this union thing even an issue?

    What happens to those who are already public sector union employees such as teachers, state workers, cops, etc….do they all opt out of the union and then anyone who wants to can re- join and agree to have dues taken???

    Why do we need any public unions as surely there are enough worker protection laws on the books to protect any employee from wrongful termination, harassment, discrimination, disability leave, family leave, etc. I’m sure the list goes on for employee protections so why do we need these unions?

    Reply

    • Posted by PS Drone on June 28, 2018 at 9:28 am

      Unions exist to provide service and protection to the lowest common denominator. With all of the employment laws you refer to anyone with ability and drive can take care of themselves. That is why union membership in the private sector has been falling for years. It is only in the public sector, where the taxpayer can be freely and continuously extorted year after year, that unions thrive. Couple union greed with political corruption and you have what we call New Jersey.

      Reply

      • Posted by El gaupo on June 28, 2018 at 11:53 am

        MJ and ps drone, those protections do exist. I know w police before binding arbitration they would go knocking door to door and ask residents to sign a petition to give them a raise. Collective bargaining gave police in N.J. a decent standard of living not shared by folks in many right to work states(now we all are). How else outside of a promotion would you stand raises to police? Based on arrests? Kissing ass? I wouldn’t want to have a cop ticket me because it’ll make him look better to a mayor when it time for a raise. I don’t see how you can have individual cops in the same rank making different amounts of money. We can not strike. Nor should we be able too….the comprimise is binding arbitration. Look, I don’t see the pba suffering because of this. I don’t know anyone who only paid rep fees instead of being in the pba. The pba cards u get alone are worth the dues. Lol. I think most people are turned off by the expensive leadership and militant liberal mindset of the Njea. The pba is not nearly as political and the leaders don’t make any where even close to what those guys make. I think it is a small stipend. I think we are far more close knit than teachers as a group and I think that your average joe is not offended by the pba as much as the Njea. I don’t know. I could be wrong.

        Reply

        • Posted by PS Drone on June 28, 2018 at 1:27 pm

          In my hopefully somewhat rational economic world, a “safe” (non-Newark, Camden etc.) LEO job would start about $50k per annum and go up $5k per year for 10 years to a max of $100k in today’s $. After that, absent promotions, it would increase with CPI. However, those $ include an element of combat pay. So admin. type service years after vesting but before age 65 would be paid at 75% of combat LEO’s. Pension would max at about 60% of the average of last three years straight time comp. It’s a pension, not a lottery prize.

          Reply

          • Posted by Tough Love on June 28, 2018 at 7:53 pm

            Your suggested pension % is WAY too high assuming they retire after only 25 years …. as most do. A 75% pension (after 25 years) would be a formula-factor of 3% per year of service (even higher than it is today). In the Private Sector (for the lucky few who still have pensions) that factor is typically about 1.5% per year of service. Public Sector workers “deserve” no more.

            AND …… that pensions should commence at age 65 with a 5% reduction for each each of age beginning before age 65….. just as is typically done in Private Sector Plans.

            AND ….. zero subsidy towards retiree healthcare, again just like what is common practice in the Private Sector today.

          • Posted by El gaupo on June 28, 2018 at 9:07 pm

            TL he didn’t say the pension should be 75% of salary….he said that admin type cops should have their pay cut 25% less.
            Let the men talk and hush up….

          • Posted by El gaupo on June 28, 2018 at 9:08 pm

            Lol…😏
            I’m kidding and you know it. I disagree with you, but for the most I begrudgingly respect you.

          • Posted by El gaupo on June 28, 2018 at 9:08 pm

            Lol…😏
            I’m kidding and you know it. I disagree with you, but for the most I begrudgingly respect you.

          • Posted by Tough Love on June 29, 2018 at 9:34 am

            El gaupo,

            You’re correct, PS Drone wasn’t proposing a 75%-of-pay pension. …… my mistake.

        • Posted by Stanley on June 28, 2018 at 3:10 pm

          Constable Gaupo Uno, Please let us know how the young fellers you guys treated to the two tier pay and benefit system react to the new rules of the road. Why sure it’s fair that you get #350K per year and they get $40K. You guys have experience. This is getting good, Constable.

          Reply

          • Posted by El gaupo on June 28, 2018 at 4:22 pm

            Honestly, this forum is not the place for sexist or racist comments. I agree w Stanley that Sotomeyer is too liberal for my tastes. And she is not fond of police However, it does not mean we should stoop to name calling especially in regards to race/gender/ethnicity.

          • Posted by El gaupo on June 28, 2018 at 4:28 pm

            Stanley, Christie did most of that not me. We have not yet hired anyone since we removed some nice perks from our contract. I assume they will not be thrilled, however many arbitrators awards have been so paltry. Take a look for yourself on the N.J. perc website. All arbitration decisions are listed on there.
            PS drone. You are honestly not far off from the reality. Most patrolman start out around $40 and max around $120 after 12-14 years. We are 14. And pensions for tier 3 guys are 60% at 25 years. Last three years of service. And I would love to get the CPI wage increase. Currently we are limited to 2% if we go to arbitration. But in reality it is less because they count officers moving of the scale towards the 2%. Leaving less for the guys who aren’t. Again, don’t take my word for it. The same website w the arb decisions has all the public employee contracts listed too(at least they all should be there)

          • Posted by Tough Love on June 29, 2018 at 9:42 am

            Quoting …………… “And pensions for tier 3 guys are 60% at 25 years.” (vs YOUR 65% at 25 years)

            You not going to find a Private Sector Plans anywhere even remotely as generous as granting a 60% pension after 25 years.

            AND ………. with HUGE cost implications (often DOUBLING the “cost” of the pensions) NJ Police pensions can commence at ANY age after 25 years, while the Private Sector worker who chooses to collect before age 65 (sometimes age 62 with VERY long service) typically gets his/her pension reduced by about 5% for EACH year of age below 65.
            ————————————————-

            There is ZERO justification for such extraordinary generous (and hence extraordinarily costly) Public Sector pensions (AND benefits).

    • Posted by Anonymous on June 28, 2018 at 9:44 am

      Everything you cited as a workplace protection was fought for by organized labor. The National labor board is being reconfigured to further erode private sector protections, so we will watch the impact on overtime, pension protections, benefits and taxation of said benefits, arbitration etc. Who provides protection for private sector workplace abuses, historically public unions because of a greater good.

      Reply

    • Posted by Stephen Douglas on June 28, 2018 at 1:27 pm

      “I’m sure the list goes on for employee protections so why do we need these unions?”

      Believe it or not, governments don’t always play by the rules. Sometimes they don’t even understand the rules. They will try to get away with anything they can.

      Our superintendent unilaterally ordered the whole department (150 workers) to go from a regular Monday – Friday workweek to a Tuesday – Saturday week for half the crew and Sunday – Thursday for the other half. He claimed the contract gave him that authority. Even the first union rep I talked to interpreted the contract that way.

      Specifically, management can change anyones schedule temporarily with twenty four hour notice, or can change anyone’s schedule permanently with longer written notice. Sounds iron clad, n’est-ce pas?

      Not so fast! If no one had objected, it would have been a done deal. But just one step up the chain of command, and the change was rescinded. The NLRB says any major change in working conditions requires a meet and confer between union and management.

      Ironically, this schedule change could have provided cost savings and improved service by the agency, and _some_ employees actually liked the new schedule.

      Some.

      A simple meet and confer, instead of a ham-fisted ultimatum, would have been beneficial to all parties.

      C’est la vie

      Reply

      • Posted by Stanley on June 28, 2018 at 2:14 pm

        Sorry Steve The customer is always boss and it pays to remember that. Customers don’t take orders from sellers. Or at least they shouldn’t. However, they are buying a needed factor of conducting business and they compete with other buyers of the factor. They compete based on pay, benefits, working conditions, fairness in hiring, promotion and so on. I wouldn’t say that there is no place for unions but there is no place for unions running the show.

        Reply

      • Posted by Stephen Douglas on June 28, 2018 at 4:16 pm

        Not sure what you are referring to, Stan.

        The union is not running the show; only ensuring management complies with NLRB rules. That is a good thing.

        This kind of thing happens every day. It requires constant vigilance. True, you don’t need a union. Prior to the 1978 Dill’s Act, it would have been handled by the California State “Employee Association”.

        Reply

  9. Posted by Joel L. Frank on June 28, 2018 at 10:05 am

    Of note: Prior to the ruling about half the states adhered to the federal rule: Employees cannot be forced to pay fees/dues.

    Now all government workers (federal, state, local) may practice the art of making sure their unions work for them in a substantive way.

    Reply

    • Posted by Anonymous on June 28, 2018 at 11:19 am

      Look the choice already existed, now they do not need to pay as non-members, but labor issues still exist and the public unions will still address and yes unions will fight /impact public policy with the collective power of member bloc voting. This is a street fight gear up, democracy is activism. Union dues are tax deductible, income is taxable.

      Reply

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: