In a stunning decision on June 27, the U.S. Supreme Court, in the case of Janus v. American Federation of State, County, and Municipal Employees, held it a violation of First Amendment free speech to legally compel public sector employees to pay fees to unions which represent them in collective bargaining and grievance proceedings.

The decision has profound implications for public employees in Maine and elsewhere.

Janus is expected to erode membership in, and cut revenues to, public unions. The reason is simple. Why would “free riders,” those who can enjoy without charge the improved wages, benefits, hours and working conditions that derive from collective bargaining, choose to have fees regularly deducted from their paycheck for the same services? Unless human nature radically changes in the foreseeable future, most wouldn’t.

In my view, this case calls into question the central tenet of collective bargaining, namely that a union has a duty of “fair representation” of all members in its bargaining unit. Perhaps that duty needs to change to reflect the new legal reality by permitting unions to represent only the interests of those who pay their fair share, leaving the rest to sink or swim on their own. Perhaps, too, unions will have to change the way they operate to retain membership and regain public support.

Under Maine statutory law, a labor organization can be elected by secret majority ballot to represent all members of a collective bargaining unit (generally employees in the same governmental unit that perform similar work such as regular classroom teachers in a school administrative district) as its “sole and exclusive bargaining agent.”

Anyone in the unit is free to choose not to join the labor organization selected by the majority of its members as bargaining agent, “except that an employee may be required to pay … a service fee that represents the employee’s pro rata share of those expenditures that are germane to the organization’s representational activities.” This principle is commonly known as the “fair share” rule.

The bargaining agent, in turn, is “required to represent all the public employees within the unit without regard to membership” in the labor organization acting as agent.

The “fair share” rule was designed to permit public employees who disagreed with their union bargaining agent’s political views or activities to opt out of paying full membership dues while still requiring they contribute a reduced “fee” commensurate with the cost of handling contract negotiations, enforcing collective bargaining agreements and representing members in grievance proceedings.

Yet, it was precisely the sort of law, enacted in Illinois, that was declared unconstitutional by the Supreme Court in Janus.

Since Maine public unions in the future won’t be able to charge fees to unwilling members of their bargaining units, why shouldn’t unions be relieved of their statutory obligation to represent the interests of those members? Opt-outs can negotiate individually or in small groups or perhaps simply content themselves with whatever scraps their employers allow to drop from the dinner table.

The upside of such a change is that it would discourage freeloading and encourage union membership. The downside is that it could lead to complexity and disruption in labor-management relations and acrimonious dissension among employees in the same work place. Still, what’s fair is fair!

Of course, this discussion wouldn’t even be necessary if it were not for both the Supreme Court’s sharp turn to the right and the shortsightedness of public sector labor unions over decades.

Janus clearly underscores these points. The decision overturns a 41-year-old precedent, Abood v. Detroit Bd. Of Ed., which established the “fair share” rule. The ruling in Abood represented a delicate balancing of First Amendment rights with “important government interests” of promoting “peaceful labor relations” and “labor stability.” Janus upset that balance.

Judicial precedents are only supposed to be overturned with great reluctance and caution. Not so in Janus. Justice Samuel Alito, author of the Janus decision, dismissed Abood as “wrongly decided,” characterized the “fair share” rule as a form of impermissibly compelled speech, and declared that doing away with it would not unduly disrupt “peaceful labor relations.” At most, he opined, “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.”

Touching on the political agenda underlying Janus, Alito noted how public sector union contracts had adversely affected the finances of Illinois state and local governments. He wrote, “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.” In essence, according to Alito, forcing public employees to pay fees that enabled unions to bargain for contracts which were fiscally detrimental to the body politic compelled them to speak in favor of positions on issues of public importance they had a right to oppose.

To be fair, public sector unions are at least partly responsible for the political and judicial backlash they’re now experiencing.

For one thing, since their inception they have been active across the nation in partisan politics and almost exclusively on behalf of the Democratic Party. This has made them a prime target of the Republican Party, the party which now controls the nomination and selection of federal judges, including those conservatives on the Supreme Court who just cut them off at the knees.

Second, these unions have often pushed for increased pay, health care and pension benefits on behalf of their members without considering the potential impact of their demands on the long-term solvency of the government bodies they worked for. Now that the dramatic fiscal impact of these labor agreements are becoming evident, and state and local governments are facing the unpleasant alternatives of steep tax increases, dramatic cuts to public services, or defaulting on their financial obligations, the voters’ mood has turned ugly and, in many states, has boomeranged against public sector unions.

It’s too late to do anything about the Janus decision. It will be the law of land for a long time to come. However, through a combination of legislative reforms, such as doing away with the fair representation rule, and real soul searching by unions as to how they can more responsibly discharge their duties, the integrity of the collective bargaining system may still be salvageable.

Elliott Epstein is a trial lawyer with Andrucki & King in Lewiston. His Rearview Mirror column, which has appeared in the Sun Journal for 10 years, analyzes current events in an historical context. He is also the author of “Lucifer’s Child,” a book about the notorious 1984 child murder of Angela Palmer. He may be contacted at [email protected]


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