Labor / Employment, On The Job

A Less Perfect Union?

The Supreme Court's Janus decision dealt a serious blow to unions. What impact will this decision will have on unions long-term?

By Evan Gibbs and Hannah Provost  
on

I co-authored this week’s article with another one of our talented summer associates, Hannah Provost, a rising 2L at Vanderbilt University Law School. This means that I gave Hannah some vague topical ideas and a due date, and she wrote this article from scratch. I just made a few edits. Thank you and great job, Hannah!

The Supreme Court handed down a landmark 5-4 decision on June 27, 2018, in Janus v. AFSCME holding that agency fees — a percentage of union dues used for things like collective bargaining — may no longer be involuntarily collected from public employees who aren’t union members. This overruled 40 years of precedent.

This is kind of a BFD.

Have you ever heard a state described as a “right-to-work” state? That means a particular state enacted legislation prohibiting employees from being forced to pay union fees to a union even though an employee chooses not to be a member of the union.

Twenty-eight states have such legislation. With this decision, however, SCOTUS effectively converted the other 22 states that allowed unions to charge nonmembers agency fees into “right-to-work” states.

How Did We Get Here?

SCOTUS held way back yonder in 1977 in Abood v. Detroit Board of Education that public sector unions could charge nonmembers a percentage of union dues for certain expenditures. But the Court’s Janus decision held that charging nonmembers agency fees violates nonmembers’ free speech rights because it compelled those employees to “subsidize private speech on matters of substantial public concern.”

Sponsored

While Justice Alito’s majority opinion acknowledged that this decision may “cause unions to experience unpleasant transition costs,” the Court held that the effects on unions could not justify compelling nonmembers to engage in the types of political speech in which unions participate.

The Straw That Breaks the Unions’ Collective Back?

Many see this decision as a devastating blow to public-sector unions everywhere — one that they may not come back from, especially considering that union membership has already been steadily falling since the 1950s.

The main concern among union supporters is that this decision makes it economically rational for even dues paying members who are happy with their representation to rethink their membership.

This is because unions must represent every employee regardless of their membership status, and all employees previously subsidized this representation through agency fees in states without right-to-work laws. The Janus decision, however, allows public employees to reap the benefits unions offer without having to pay a cent.

Sponsored

As membership declines, so do annual union revenues, and many believe what will follow will be a reciprocal cycle of ineffectiveness and lower membership. Unions across the country fear that fewer resources will lead to less organizing, reduced influence, and less effective bargaining, resulting in a loss of faith among existing members. Political analysts are suggesting that unions could lose tens of millions of dollars in membership and agency fees as a result of the Janus decision.

Many unions are not equipped to organize in the face of strong opposition with less funding. Many unions may likely find themselves with woefully insufficient resources to fight for members and funding that was previously secured from the outset. Many unions realistically will probably not survive this blow.

What Doesn’t Kill You Makes You Stronger . . . Right?

Many union leaders are heralding the Janus decision as one that will not defeat them but will ultimately make them stronger than ever. Is this merely an attempt to show strength in the face of adversity or is there some truth to this claim?

The Janus ruling did not come as a surprise to union leadership or their members. Unions saw the writing on the wall long before the decision became final, and many have been investing heavily in internal organizing to make sure their current members feel well-represented and content. Union leadership across the country has spent the last few years reaching out to its own members one-on-one to ensure they feel heard and that their needs are being met.

Prior to this decision, many unions issued re-commit cards to current members that would lock them in for the next year regardless of the Janus outcome. For example, one union claims to have received over 500,000 re-commits among its approximately 1.7 million members.

Many unions also see this decision as adding fuel to the fire of union organizing that has been ramping up across the country. Members view the decision as just another example of employers taking advantage of the little guy and feel more invigorated than ever to join the cause to ensure that their rights are being spoken for.

Some pro-union state legislatures have passed legislation in advance of Janus that will lessen the burden of union recruiting. For example, states like California and New Jersey have passed legislation guaranteeing public-sector unions the right to speak to new hires and giving them access to the new hires’ personal contact information. This will allow unions to contact new employees to try and persuade them to join the union.

The Hill Unions May or May Not Die On

There’s no denying that SCOTUS’s Janus decision dealt a serious blow to unions. What’s less clear, however, is the impact this decision will have on unions long-term. Whether unions falter under the pressure of less funding and declining membership or rise to the new challenges ahead is something only time can tell.

evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

Topics

, , , , ,