The map room scene is one of the best moments in the original Raiders of the Lost Ark movie. Indiana Jones drops into the ancient map room of Tanis to locate the Lost Ark. Someone has already been there but marked the wrong spot. There are lots of little model buildings on the map room floor; Indiana dusts them off, inserts a crystal medallion into a staff, and waits for the sun to rise over the ceiling. At just the right moment, sunlight creates a bright sunray through the medallion that illuminates precisely the location of the Lost Ark on the map. At first, the sunray is narrow, but very quickly, it brightens and takes up the whole room. Will the same thing happen in the aftermath of Janus v. AFSCME, the U.S. Supreme Court’s recent decision that outlaws compelled payment of agency fees from non-union members in a bargaining unit? Is Janus a narrow decision, targeted solely at union dues, or a blinding juggernaut that will take over everything? Here are some thoughts on the thinking of the Supreme Court in Janus, inspired by the map room of Tanis.
Just like the map room of Tanis, someone had been there before with Janus. Much digital ink has already discussed Janus, but to quickly recap, in 1977, the U.S. Supreme Court decided Abood v. Detroit Board of Education, which held that non-union members in a bargaining unit can be compelled to pay so-called agency fees. Generally, a bargaining unit is a group of employees who have similar characteristics and who are not part of the employer’s management team. A subset of employees within a bargaining unit can unionize if over 50% of the employees in the bargaining unit vote to form a union. When this occurs, under the Abood decision and the cases that followed it, the employees in the bargaining unit who did not want to join the union (theoretically, as many as 49 people in a 100-member bargaining unit) could still be compelled to pay agency fees out of their wages. Unions are required to represent the interests of all employees in a bargaining unit regardless of whether the employee joins the union or not; under Abood, agency fees consisted of the union’s costs of bargaining for everyone in the bargaining unit for things like wages and benefits, and also covered the cost of representing all employees within the bargaining unit who brought complaints (called grievances) against their employer. The Abood decision allowed the compelled payment of agency fees for non-union members in public sector bargaining units based on the goals of promoting labor peace and preventing free ridership. Janus overruled Abood and held that compelled payment of agency fees by non-union members in a public union bargaining unit violates the First Amendment’s protection against compelling a person to subsidize speech they disagree with.
Janus is a lengthy decision — all told, the majority decision and dissent play out over 83 pages. But the actual holding of the case appears on page 48, at the end of the majority decision. It is pretty straightforward: public sector unions cannot extract agency fees from non-consenting employees because it violates the First Amendment. Unless the non-union member public employee affirmatively consents to pay, “neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment.” The non-union member’s consent must be shown by clear and compelling evidence, which means the employee must “clearly and affirmatively consent” to the payment of agency fees to a public sector union.
While Janus’s holding is straightforward, its reasoning is convoluted and not easy to follow, and this is where the Map Room of Janus begins. After Janus, public sector unions cannot collect agency fees from non-union members in a bargaining unit who do not consent. But what else does Janus mean? Its reasoning will inform how it will apply to other factual scenarios and cases, and this is where two people reading the same passages in Janus might conclude two different things.
The source of Janus’s hard-to-follow reasoning is unknown, but here’s one plausible theory: the miraculous time saving qualities of control-x, control-v, otherwise known as “cut and paste.” In many respects, Janus’s reasoning is a re-hash of three cases that came before it, starting in 2012. The first serious questioning of Abood came in the U.S. Supreme Court’s decision in Knox v. SEIU, a 2012 decision written by Justice Alito that ruled that non-union members in a public union bargaining unit should have been given a chance to object to increased union dues to fund political activities. Justice Breyer wrote the dissent, joined by Justice Kagan. Then, in Harris v. Quinn in 2014, the Supreme Court declined to extend the Abood doctrine to quasi-public employees who received public funding but worked for private individuals. Justice Alito wrote the majority opinion in Harris and Justice Kagan wrote the dissent. Reading the reasoning in Harris is just like reading Janus. Many of the same arguments and same language that Justice Alito and Justice Kagan deployed in Harris reappear in Janus, just in a slightly different order. Finally, the Supreme Court heard oral argument in Friedrichs v. California Teachers Association in January 2016, a case that challenged directly whether to overrule Abood. Presumably, Justice Alito got to work on a majority opinion, and Justice Kagan started a dissent after oral argument in Friedrichs, but before the opinions were ready, Justice Scalia passed away in February 2016. Friedrichs deadlocked 4-4 among the remaining justices, and the fate of Abood remained unsettled until Janus. This is a long way of saying that at the time Justice Alito wrote the majority opinion in Janus and Justice Kagan wrote the dissent, each had probably written on the same issue at least twice, and both had those digital files at their fingertips. There’s no easier way to start a draft than by hitting control-x, control-v. But there are consequences — the biggest being the inertia of changing the prior draft. This, I suspect but have no actual evidence to back up, is the reason why Justice Alito and Justice Kagan’s opinions in Janus are hard to read and do not flow well. They worked off prior opinions instead of starting from scratch. It’s not uncommon to use prior decisions, but the upshot is Janus’s reasoning is difficult to comprehend. I read it three times before I started to understand it.
Turning to the inner-workings of Justice Alito’s reasoning for the majority in Janus, a few nuggets stand out, and it’s unclear how they’ll impact future cases and decisions. Justice Alito opines that “it is questionable whether the Constitution would permit a public-sector employer to adopt a collective-bargaining agreement that discriminates against [union] nonmembers” who are in the bargaining unit, and cites to an old labor law case that invokes equal protection and a First Amendment case on the right of association. Is Justice Alito saying that nonunion members’ First Amendment rights would be infringed if a public employer treats them differently, and that the difference must be justified by strict scrutiny because the First Amendment is a fundamental right? Not in so many words, but he might be. If so, the import of Janus could extend far beyond public sector unions, and its reasoning could be used to challenge many types of social legislation that impact First Amendment rights. Broadly viewed, this would amount to an opportunity to strike down social legislation on substantive due process grounds under the Fourteenth Amendment, with the substantive due process right defined as the First Amendment through the incorporation doctrine. (Generally, the incorporation doctrine refers to making parts of the Bill of Rights applicable to the States – before the Fourteenth Amendment, the Bill of Rights only restrained the federal government). It’d be a return to the colloquially-named Lochner era from the early 1900s sans the Lochner.
The majority opinion in Janus also says that “serious constitutional questions would arise if the union were not subject to the duty to represent all employees fairly.” Here, the majority is saying that (as a matter of state law) unions serve as the exclusive bargaining representative of everyone in the bargaining unit, regardless of whether they’re in the union or not, so as a matter of federal constitutional law the union must represent everyone’s interests fairly, To get to this conclusion, Janus cites to one of the Supreme Court’s older cases that reasoned that the union “is clothed with power not unlike that of a legislature which is subject to constitutional limitations on its power to deny, restrict, destroy or discriminate against the rights of those for whom it legislates and which is also under an affirmative constitutional duty equally to protect those rights.” Once again, Janus is a First Amendment case, but the majority is making an equal protection argument for social legislation. How far this type reasoning will go in future cases is anyone’s guess.
Another interesting nugget is the majority’s observation that “it is not disputed that the State may require that a union may serve as exclusive bargaining agent for its employees–itself a significant infringement on associational freedoms that would not be tolerated in other contexts.” Here, the Court is saying that it’s okay that non-union members’ First Amendment rights are infringed to some extent — the State can require that a union be appointed to bargain for them on things like wages and benefits, so that the non-union members in the bargaining unit cannot negotiate directly with their public employer. But by saying “it is not disputed,” is the Court saying that the parties don’t dispute it, or that the Court doesn’t dispute it? The Court typically does not resolve issues that are not disputed by the parties. Perhaps the Court will re-visit the union’s role as as exclusive bargaining representative in the future, or perhaps it used “it is not disputed” to mean the issue is settled. It’s unclear.
It’s also unclear what the majority and minority opinions were thinking when they said that existing public sector collective bargaining agreements with mandatory agency fee deduction clauses will still be enforceable after Janus so long as the agreements have severability clauses. Severability clauses typically say something like the remainder of a contract will remain in force if one section is found unenforceable. The majority in Janus relied on a National Labor Relations Board decision to make the point that existing collective bargaining agreements will likely be enforceable after Janus if they have severability clauses, but this ignores that the National Labor Relations Board governs private sector unions, where Congress has found uniformity and federal jurisdiction to be paramount. There is no similar federal policy for interpretation of state level public sector union contracts, and those unions are regulated separately at the state level in all fifty 50 states. For existing agreements with mandatory agency fee deduction clauses, enforceability after Janus will be governed by state law and vary state-by-state.
One final nugget: the Janus majority opined that its decision does not “require an extensive legislative response. States can keep their labor-relations systems exactly as they are–only they cannot force nonmembers to subsidize public-sector unions.” This hasn’t been the experience in Rhode Island so far. Five days after the Supreme Court issued Janus, the Rhode Island General Assembly amended the Police and Firefighter Arbitration Acts to address union representation at grievance hearings. See 2018 R.I. Pub. Laws 210 (July 2, 2018) (creating new sections R.I. Gen. Laws 28-9.1-18, 28-9.2-18). Other existing sections of the Rhode Island statutory scheme for labor that have been on the books for decades are almost certainly unconstitutional after Janus (or perhaps before). See R.I. Gen. Laws 36-11-2 (state employee labor statute requiring nonmembers to pay agency fee equal to union member payment); R.I. Gen. Laws 28-9.3-7(e) (school teachers arbitration act requiring non-members to pay agency fees).
Will Janus be a narrow decision or impact broad swaths of society? Its reasoning is like a map, and its import will play out in the lower courts and labor boards, in legislatures, in interactions between management, unions and non-union members, in the Supreme Court, and in the public square.