Update: Workers’ Speech Rights in the Wake of Janus

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Free Speech & Election Law Practice Group, was recorded on Friday, October 26, 2018, during a live teleforum conference call held exclusively for Federalist Society members.          

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is an update on Workers' Speech Rights in the Wake of Janus. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us Mr. Robert Alt, who is the President and CEO of The Buckeye Institute. After our speaker gives his remarks, we will then go to audience Q&A. Thank you for sharing with us today. Robert, the floor is yours.

 

Robert Alt:  Well, thank you so much. I'm pleased to be talking about post-Janus litigation today, which is an area where there is a lot going on. But before we jump into that, we'll offer just a little bit of background. I'm sure that many of you on the call are familiar with the Janus case, but some of you may not be. The Janus case fundamentally asked the question of whether or not public employees could be forced to pay for collective bargaining speech. But I think in terms of framing it in this way, that's a little bit abstract, so let's see if we can make this a bit more tangible.

 

      I've long thought that the symbol for the Janus case should be a breathalyzer. Let me explain why. The collective bargaining agreement negotiated by the Teachers' Union in Bay City, Michigan, specified that a teacher could be drunk in the classroom five times before she could be terminated. She could show up to work on illegal drugs, high, three times before she was fired. And if she sold drugs in her classroom to a student, she could only be given the maximum of a three-day suspension. She could only be fired after the second offense of selling drugs in her classroom to a student. These are obviously questions of significant public concern. These are issues with which many well-meaning teachers would disagree and obviously would feel very uncomfortable having their dollars used to support this sort of speech, this sort of negotiated agreement.

 

      Or perhaps, if not a breathalyzer, perhaps the symbol of the case should have been a quarter because in multiple jurisdictions in Ohio, Westerville and Marietta in particular, the unions had demonstrated that they were so opposed to merit ever being a factor in decisions made by their employer that if there was a situation in which there was the need for layoffs, the determination of which teacher to lay off had to be done on the basis of seniority. Well, what would happen if there was a tie in seniority? What would happen, for instance, if the Teacher of the Year and the lowest performing teacher in the school happen to have equal seniority? Well, the answer was none of those sorts of merit factors could be used in the decision. The decision would have to be made by the flip of a coin. Again, this was speech engaged in by the Union, negotiated into the contract, and speech which all the teachers were compelled to subsidize through union dues and through agency fees.

 

      And so Mark Janus, who was a social worker in Illinois, bravely brought this case challenging these issues. Illinois, as you know, has one of the most insolvent pension systems in the country. Mark was concerned about speech that his union had engaged in with regard to that pension policy, as well as other issues with which he disagreed, and did not feel that, consistent with the First Amendment, that he should be forced to subsidize that speech in order to keep his job. And the Supreme Court agreed. In the Janus decision, they ruled that unless employees clearly and affirmatively consent before any money is taken from them, the standard laid down by the Court would not be met.

 

      So what does that mean in practice? And that what's being shaken out right now in both the legislatures and in the courts. So the first move by the unions was an attempt to limit the impact of the decision just to agency fee payers, to those individuals who had -- as you recall, under the pre-Janus law, an individual could be forced to pay for the agency fees for the cost of collective bargaining, but the Supreme Court had previously determined that you couldn't be forced to be a full member. Now, in most states, or at least in many states, this was cool comfort. In Ohio, for instance, the unions were permitted to charge up to 100 percent of the full membership fees for collective bargaining. And when they apportioned out the fees, not surprisingly, it would end up that on average, I'd say, roughly 85 percent of the full cost was assessed as an agency fee, as fees directly related to collective bargaining services.

 

      So because of this, and because of the burdens associated with opting out, a relatively small percentage of individuals in unionized work forces jumped through the hoops requisite to become the so-called agency fee payers, non-members. In many states, it probably amounted to roughly five percent or less of the unionized public employee work force. And so the unions have argued that Janus, because Mark Janus was not a full union member, he was an agency fee payer, that the Janus case really only applies to these agency fee payers and not to full union members. Thus, the AFL­-CIO publicly states on their webpage, quote, "It is important to remember that the ruling will apply only to non-members. The Court's decision has no application to members," end quote. And the general counsel of the National Education Association, one of the nation's largest teachers' unions, declared similarly that "the Janus decision does not mean that unions have to resign existing members. Janus is about the payers," end quote.

 

      So with that in mind, numerous unions negotiated collective bargaining agreements that began serendipitously in May in anticipation of the Janus decision, and designated the opt-out windows either before June, when they anticipated the decision would come down, or years in the future, in some cases 2021 or 2022, in order to maximize their compulsory dues. So what does this mean in practice? In Ohio, there are 3,200 collective bargaining agreements that cover the public sector workers in the state. I know this because my organization, The Buckeye Institute, has analyzed all 3,200 in preparing a grass roots website to assist individuals in exercising their Janus rights, workerschoose.org. If a worker goes to that website and types in a few simple pieces of information, they're able to obtain the information they need in terms of what their own collective bargaining agreement specifies for their opt-out window and what they need to do to exercise their rights.

 

      But if you were to do that in Ohio, and you did it right after the opinion came down on, say, July 1st, you would find that 15,556 public employees were already barred from being able to exercise their rights if they were bound by the terms of the collective bargaining agreements. As I said, a number of the agreements specified an opt-out window before June, clearly in an attempt to prevent individuals from exercising their rights should the decision come down as it did. If, however, you waited until, say, October 1st, there's over 65,000 employees that would be barred. And so again, the unions are attempting to claim that individuals have no -- who are full members would have no rights under Janus and that they are held to the terms of these collective bargaining agreements. This seems to be remarkably specious, and that's being challenged in a number of different pieces of litigation.

 

      So one theory that has been used to address this has been advanced by the Liberty Justice Center. Many of you are familiar with that organization. It's one of the public interest firms who, along with National Right to Work, brought the Janus case. They'd begun sending letters to states warning them to stop withholding dues because they argue that pre-Janus consent is invalid. They're seeking to sue -- or they're suing seeking a requirement that members opt in post-Janus, that that be a universal requirement. Other cases have been brought challenging the sufficiency of the union cards that are used to demonstrate that individuals had consented to become a union member.

 

      The Court has argued that there has to be clear and compelling evidence of consent, and in some cases, that's clearly lacking from the cards that are available. In some cases they don't have the cards. In other cases, I've heard about cards being doctored, and so these create some evidentiary issues. In one particular case, I heard about a union procedure whereby the presumption was that you were a union member unless you actually signed a card stating that you did not wish to be a union member. This sort of flips the presumption on its head, and in this case, I'd say that looks more like affirmative dissent than affirmative consent.

 

      And so I think you're going to see a number of cases that seek clarification as to what is adequate of prior affirmative consent on behalf of workers that would be sufficient to allow the unions to continue extracting dues. Other challenges have simply suggested that any attempt to lock individuals in by contract and to prevent them from being able to exercise their constitutional rights are insufficient. In this sense, The Buckeye Institute, my organization, has already represented three clients in three different states successfully who were bound by collective bargaining agreements where they were outside of the opt-out windows that the unions had specified. We issued demands on behalf of the clients, and the unions went ahead and recognized the Janus rights, let them out of the union immediately, and stopped withholding dues.

 

      Interestingly enough, in those cases, I really feel like the unions were attempting to mitigate potential damages. They really didn't want to have this established in a broader ruling in the courts, and so, in these cases, I think that they were willing to quickly settle the matter out of court in order to prevent getting an adverse ruling. We, nonetheless, have attempted to make sure to publicize it to other union members and to make sure that the successful clients were able to do likewise in order to assist the largest number of individuals to be able to exercise their rights.

 

      So another question that is arising post-litigation is what about agency fees that were paid by these agency fee payers prior to the decision, unlawfully? If, in fact, these individuals had a constitutional right not to be forced to pay these fees on pain of being fired, which was the rule before Janus, shouldn't they be entitled to get those fees back? And so there's numerous different so-called clawback cases seeking a return of some portion of those agency fees. Jonathan Mitchell, who previously taught at George Mason, among other places, he is bringing a number of class actions across the country seeking clawback of funds. National Right to Work, I know, is bringing a number of cases.

 

      The argument in favor of the fees is relatively straightforward. As I suggested, the argument on the other side -- I think you're going to see the unions attempting to argue something analogous to roughly what you would call something like qualified immunity, that there was not clear law prior to the Janus case establishing that the individuals had a right not to pay these fees, and thus they shouldn't be held to that standard prior to that decision coming down and becoming clear.

 

      So with those, the sort of opt-out and the clawback cases out of the way, we move to what I think is probably really the next big case in labor law, and that is exclusive representation. So before I get to that, let me take a step back once again and talk for a moment about how it is that we got to the Janus case. And in some sense, we got there because of a road map that was laid down in a series of pre-Janus cases by Justice Alito. Prior to that case, the Abood case, which, based upon a concept largely of labor peace, had upheld these compulsory agency fees was the law.

 

      But in a series of cases, Alito began to cast doubt on the continuing vitality of Abood, and did so quite forthrightly, leading up to -- in one particular case, he provided about six reasons why he thought that Abood was wrongly decided, but did not ultimately reach out and strike down Abood. It really was something of a roadmap for litigators in terms of bringing the challenge both in Friedrichs, which we remember raised similar claims to the Janus case a couple of years before, ultimately ended up deadlocking after Justice Scalia's untimely passing. Once again, it was following this roadmap that, I think, led to the successful outcome in Janus.

 

      Well, in the Janus case itself, Justice Alito once again offered some hints, I think, of what he suggests is a problem in the law. And given what happened in Janus, I think we would be well advised to heed his advice. Twice the Court noted that, quote, "designating a union as the exclusive representative of non-members substantially restricts the non-members' rights, " end quote. And the Court also referred to exclusive representation as, quote, "a significant impingement on associational freedoms that would not be tolerated in other contexts," end quote. Again, this looks like a pretty clear invitation from Justice Alito to address the issue of exclusive representation. And so The Buckeye Institute, joined by Andrew Grossman at BakerHostetler, accepted that invitation, and we were in court three hours after the Janus case came down, bringing our first federal lawsuit post -- first post-Janus federal lawsuit against exclusive representation.

 

      So in terms of understanding exclusive representation, this is, to my mind, sort of the flip side of the coin of the Janus case. Janus said you cannot be forced to pay for collective bargaining speech with which you disagree, and the exclusive representation claim says, "Well, yes, but I shouldn't be forced to speak through the union." And I believe it's 41 states and the District of Columbia have some sort of provisions at law which allow a union to be designated as the exclusive representative for a bargaining unit. And as such, they have the authority, and lawfully speak not just for the union members, but for the non-members.

 

      And so what does this end up looking like? So take, for instance, we're now in three different federal courts in three states raising this challenge. One of the claims that we're bringing is on behalf of Kathy Uradnik who is a professor in the Minnesota state system. Kathy is a professor there who has chosen to be, prior to Janus, to be an agency fee payer. Post-Janus, she was able to get a refund of those agency fees going forward. But, nonetheless, she is still forced to associate and to speak through her union which is her exclusive representative at her university.

 

      In this capacity, the union negotiates for different benefits for union members as opposed to non-members. Non-members, for instance, are excluded from certain privileges on campus, including participating in key faculty committees. Faculty committees that, for instance, make determinations on who their bosses will be, who the future deans will be, what the curriculum is at the institution and the like, what faculty members are hired.

 

      In addition to denying them a say on key governance issues at the university, participation in these committees is a key factor in the determination of career advancement and tenure at the university, explicitly under the terms of how it is that one obtains tenure at the university or advances in their career. And so this is a significant harm and detriment to non-union members, that they're denied access to these committees. So Professor Uradnik has filed suit seeking not to be forced to speak through the union. We have filed for a preliminary injunction. That was denied at the District Court level, and we're already at the Eighth Circuit Court of Appeals.

 

      Similarly, we brought a case in Ohio on behalf of Jade Thompson, a Spanish teacher in Marietta, Ohio. Again, the union there denies non-members certain privileges that are allowed to union members. They're denied the ability to participate in key committees run by the school but, nonetheless, that are reserved solely for union members. Jade Thompson, once again, has sued seeking not to be forced to speak through the union.

 

      And finally, Professor Reisman from Maine, we're representing in a similar action. Professor Reisman was actually the grievance officer for his union at the University of Maine at Machias. So he actually was quite satisfied with his local union. What he was dissatisfied with was the state and national union, which he was forced to participate in by virtue of the arrangement with his local union, and the fact that he had no choice but to speak through those unions as they engaged in highly political speech and conduct.

 

      And so once again, given what it is that brought us to the Janus case, the strong signaling and road map that Justice Alito had given that ultimately led to the Janus decision, we have reason to believe that the strong language that he had in Janus questioning exclusive representation may lead to the next big case to come before the Supreme Court. In addition to Buckeye's three cases in this regard, I know National Right to Work has at least one case in the Eighth Circuit, the Bierman case, where they've already -- they have an adverse ruling from the Eighth circuit, and I know they're scheduled to seek cert here before the end of the year.

 

      So with that, let me go ahead -- I will pause here and open it up to any questions from the audience.

 

Micah Wallen:  Thank you, Robert. Let's go to our first question.

 

Caller 1:  I have two questions. First of all, why would the unions want to force the employees to pay the fees instead of negotiating with the state employer that the state will fund the union? And second of all, is it wrong for a Justice to give indications that he has pre-judged a case?

 

Robert Alt:  I'll try and remember these and take them in turn. So first, why is it that a union would attempt to force individuals to pay fees rather than negotiating with the employer? That latter idea is one that's come to fruition only, I think, as the Friedrichs and Janus cases were moving along. I've seen a number of professors who have discussed that, and there's been some suggestion that might be taken up in California or elsewhere. There's a couple things. Number one, you've got to get that through the political process, and the potential issue with that, I mean, obviously, that may or may not be possible. You probably have to have a particularly union friendly state in order to get that kind of a government contract, as it were.

 

      But you can imagine there's any number of issues that might come up with that. Number one, if the -- it does certainly create some issues with the potential appearance of conflict of interest. If the union is being paid by the employer to provide the services, and yet, they're negotiating against the employer, this creates sort of a weird situation. I mean, there's already, I guess, with some of the lobbying spending that's being done by the unions on behalf of politicians who sit on the other side of the negotiating table, there's already some concerns about sort of the fairness of the situation, but this, I think, exacerbates it even more. I think if I were being represented by that union, you might wonder to what extent that they really are going to have your best interest as a worker at heart if, in fact, they're getting -- their paymaster is the very entity that they're punitively negotiating against, or are on the opposite side of the negotiating table. So there's a number of reasons that is may not be that it might not be as preferable, optically.

 

      There's also questions to whether something like that might, in fact, make the unions into government contractors and subject to certain requirements that government contractors would be subject to. Additionally, unions would be potentially subject to the ebbs and flows of the budgetary cycle, whereas if you can compel payment by non-members as a condition of employment, you really have great flexibility in terms of setting your own rates. So there's probably a few reasons why they'd chosen to go down that road previously when they could.

 

      As to whether or not there's a problem with a judge sort of pre-judging a particular case, I wouldn't say in terms of this that Justice Alito pre-judged a particular case. What really happened in these situations was the Court sort of talking about its concerns about areas of law without actually reaching a decision. It's fundamentally -- what's said in the pre-Janus cases and what Janus said with regard to exclusive representation arguably is dicta. It's not -- this isn't a blinding holding of the Court, but it is a suggestion from the Court as to concerns it has with regards to the constitutionality of particular practices that are being engaged in.

 

      I'd say that's very different than, for instance, the concerns that we have about a judge or Justice appearing before Congress and expressing their views with regard to a class of cases before the particulars have come before them. Even in these cases, again, they're not judging them. They don't actually issue a ruling, but they do give their sense of concerns about that particular area of law. And that's extraordinarily common. Judges have done that for years and will continue to do so.

 

Micah Wallen:  We will now go to the next question.

 

Bob Fitzpatrick:  Hi, Bob Fitzpatrick here in D.C. Two quick questions on this notion that I guess has been proposed by a couple of law school professors that apparently the way around these decisions is for the, as you discussed a few minutes ago, for the state to fund the union. And you discussed some of the theories, the problems with that. Wouldn't there also be a duty of fair representation claim in there with such a clear conflict of interest? The employer is subsidizing the union. And my second question is where can I go -- do I go on your website and the National Right to Work website to find the citations to these cases that are wending their way up to the various circuits and to the Supreme?

 

Robert Alt:  I'll go ahead and take it in reverse order. Yes, I would go ahead and take a look at, for the cases I've mentioned that Buckeye is filing, you can go to our website, buckeyeinstitute.org, and we've got information about all those cases, as well as background videos from the clients and other materials that you may find helpful. National Right to Work has information on the numerous cases they're engaged in. I don't know with regard to Jonathan Mitchell, who is bringing a number of class actions, if he's got a single website that you can go to. Again, Liberty Justice Center is bringing a number of cases. I would also point out the Fairness Center in Pennsylvania is bringing a number of cases in Pennsylvania. The Mackinac Center just filed a lawsuit in New Jersey, and the Freedom Foundation in Washington is engaged in a number of different lawsuits. So I hope I'm not leaving anyone out at this point. If so, I apologize for the inadvertence. But those are among the groups that are bringing post-Janus litigation.

 

      As to your question about fair representation, yes, I think that if you get into a situation where you've got a state paying for the dues -- and again, my understanding, the theories I've heard surrounding this are that the employer would probably somehow assess a fee that they would then use to pay for this, or perhaps they would do it out of general revenues. I've heard different theories as to how it is the state would fund it, and then they would simply purchase this service that would be done on behalf of all the individuals in the work force. Again, I think, given the conflict of interest there, there would be some concerns about fair representation.

 

      There are currently, I think, with regard to the exclusive representation, it's interesting. I think that there are some serious concerns about the ways in which the unions have been engaging in the representation insofar as they're seeking disparate benefits for members and non-members. I think there's some issues surrounding that in the exclusive representation context as well.

 

Bob Fitzpatrick:  Thank you.

 

Micah Wallen:  While we're waiting for any more questions to come in, Robert, did you want to tell us about in the course of preparing for litigation, what are some of the more interesting opt-out windows that you came across there?

 

Robert Alt:  Sure. As I mentioned, we, in preparing our website, workerschoose.org, went through all 3,200 collective bargaining agreements in Ohio. And there were some, I think, really kind of remarkable op-out windows that we identified. In one school district, the opt-out window was between August 22nd and August 31st, 1991. And this was for a collective bargaining agreement that was adopted in 2017. So they arbitrarily chose an opt-out window that occurred more than a decade and a half before the agreement was entered into. In other cases, they specified an opt-out window for six days over Christmas two years in the future.

 

      Frequently, you see the opt-out window selected based upon the anniversary date of the employee, and I think that the presumption here, and it's probably a fair one, is that how many of you remember off the top of your head what your anniversary date is with your employer? That's a hoop that I think many people would find difficult to jump through. And I think this really goes to, I think, some of the problems with relying upon these opt-out windows and the procedures put in place by them.

 

      In some cases, the -- well, just to give you a few other examples of the difficulties that individuals may have with regard to opting out, we were contacted by an individual who was not able to opt out of their union because the union required that the opt-out be conducted in person during very limited business hours, business hours during which the teacher was working, and so they could not appear in person. In other cases, like a bad MASH episode, the union requires that the opt-out be executed in triplicate, sent to multiple different offices, all within a very specific time window. In some cases they require it be executed via certified mail. Again, all of these things to make it difficult -- I think are undue burdens in the exercise of constitutional rights.

 

      So we've had potential clients reach out to us just recently where they attempted to comply with what was actually a pretty onerous set of requirements to opt out, only to be given a blanket statement that their request was denied because they failed to comply with the procedures. And yet, the union would not tell them which procedures it was that they failed to comply with, so there was no ability to cure -- there was no ability to even verify that that denial was issued in any kind of good faith. Even if the requirements would be permissible—and I would argue these sorts of onerous requirements are impermissible after Janus—but these are the sorts of tactics that we have seen some unions who are engaging in bad faith engagements.

 

Micah Wallen:  And let's go to our next question.

 

Caller 3:  Hi. Thank you for the presentation so far; very informative. Separate and apart from the financial obligation, am I right in recalling that many years ago, the Supreme Court already had ruled, I think on First Amendment grounds, that public employees could not be compelled to actually become members of a labor organization? Was that Hudson v. Chicago Teachers' Union? Is that the right neighborhood? Thank you.

 

Robert Alt:  They had declared that. I believe that was in the Hudson case, which also specified that you were entitled to the so-called Hudson notice with regard to separating out those portions of the -- how it is that the fees were allocated, essentially, what were chargeable expenses for collective bargaining versus non-chargeable expenses. This, of course, ended up being one of the big issues moving forward into the Janus case, which is the breadth of activities that unions engaged in that they construed as chargeable expenses.

 

      So, for example, my colleague in the litigation, Andrew Grossman from BakerHostetler, wrote a piece in the Wall Street Journal in which he had identified that numerous of the unions consider their national conventions each year as a chargeable expense. If you take a look at the activities that they engage in at those national conventions, most of them have the Democratic nominee for President speak at their -- most of the major unions have the Democratic nominee for President speak at those national conventions. Hillary Clinton spoke at several. Most of them endorsed Hillary for President, passed resolutions, for instance, stating that they would take all reasonable steps to get Hillary elected as President; also endorsed policy platforms on everything from D.C. statehood, to taking stances opposed to religious liberty protections in the states, to stances on immigration policy, and any number of other very political issues. All of this done with chargeable expenses, which is to say, those dollars that you could not opt out of pre-Janus.

 

      And perhaps the greatest insult to injury in terms of what was a chargeable expense, litigation is a chargeable expense. And so as I noted in national review just before the Janus case, Mark Janus paid for some of the most expensive lawyers that money could buy to argue in the Supreme Court, but he paid for them to argue against him. And that is because, given that it was a chargeable expense, he was forced to pay for the attorneys representing the union. He could not opt out of those fees, so he was -- I think if you really want to explain and understand the problem with compulsory agency fees, it was that Mark Janus was forced to pay for those people who were attacking him in court.

 

Micah Wallen:  Thank you, Robert. We do not have any further questions lined up at this moment, so if you have any closing remarks…

 

Robert Alt:  Well, thank you once again. I think that Janus really provides extraordinary opportunities, first, for the free speech rights of employees, for them genuinely for the first time to have a voice and a choice with regard to the representation. It grants those employees a genuine opportunity. Unfortunately, in the wake of the decision, numerous unions have attempted to curtail those rights, to limit them to those who are agency fee payers before the Janus opinion came down, to attempt through, by contractual means, a lock in employees into continuing to pay dues or fees long into the future, and to rely upon the difficulty of getting out to continue that stream of income.

 

      I think, because of this, you're going to see -- this is going to prompt -- it already has prompted additional litigation. In addition to the cases I mentioned, The Buckeye Institute will be filing a couple of new cases very soon with regard to this opt-out question, making sure that individuals truly are held to the standard that the Supreme Court laid down, that they're given the opportunity to affirmatively consent to union representation if that is what they like.

 

      But additionally, I think, the next, as I suggested, the next big wave in labor rights, I think, will be establishing a right not to speak through the union. The Supreme Court was particularly strong in this last term in protecting the rights of individuals against compelled speech. And I think exclusive representation constitutes a genuine infringement on the rights of workers by forcing them to speak through an agency with which they may disagree and may, in fact, be arguing against their interests, as the union has done in cases like Professor Uradnik. So those are cases, I think, that are worth watching as they wind their way through the federal courts and potentially up to the Supreme Court.

 

Micah Wallen:  On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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