LIFE AFTER JANUS: Public employee unions were dealt an entirely expected but nonetheless massive blow Wednesday when the Supreme Court ruled 5-4 in Janus v. AFSCME that they may no longer collect mandatory “fair share” or “agency” fees from non-members to cover their portion of the cost of collective bargaining. The court ruled broadly for the plaintiffs, requiring the unions to adopt an “opt in” system to join up and pay dues rather than merely allowing workers to opt out of doing so. “Nobody out there is going to be paying money to a public sector union unless they affirmatively want to,” said Charlotte Gardner, a law professor at Seattle University.
Plaintiff Mark Janus and his lawyers say their next step is to ensure that the ruling is implemented. “We’re going to have make sure states and unions respect this decision,” said Jacob Huebert, a lawyer for Mark Janus from the Liberty Justice Center. “If they’re imposing unfair unconstitutional barriers, we’ll be prepared to challenge that in court.” AFSCME President Lee Saunders said on a phone call with reporters that the union was ready to make “the necessary adjustments” to fee collection.
Does Janus invite future challenges to unions? In his decision, Justice Samuel Alito wrote that designating any union an exclusive workplace representative “substantially restricts the rights of individual employees” and was “a significant impingement on associational freedoms that would not be tolerated in other contexts.” Alito, Garden said, may be seeding the ground for plaintiffs who might wish to challenge the constitutionality of exclusive bargaining rights.
We’ve been here before.. Back in 2012, the conservative justice questioned the legality of fair-share fees, writing in Knox v. Service Employees that “acceptance of the free-rider argument as a justification for compelling non-members to pay a portion of union dues represents something of an anomaly” and that enrolling workers automatically in unions unless they opted out “represents a remarkable boon to unions.” Alito quoted repeatedly from Knox in yesterday’s case. “Janus isn’t the first time that Alito has opined on the viability of Abood ,” said Sharon Block, a former Obama DOL official now working at Harvard University. “He put that marker down before. I think you have take him very seriously.”
The planned retirement of Justice Anthony Kennedy, and his likely replacement by a more conservative jurist, only increases the likelihood of future legal challenges to labor rights. “Alito is playing a little bit of a long game here,” said Dan Epps, former clerk to Justice Kennedy and now associate professor of law at Washington University in St. Louis. “He seems quite hostile to unions generally.”