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Could the Janus decision be applied to private sector unions?

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The fair-share fees required of employees who decline to join the union — which in the Janus case were about $45 monthly, or 22 percent less than regular dues — are meant to support only the union’s collective bargaining activities and not its political initiatives. But Justice Samuel Alito’s majority opinion said that all public sector bargaining is inherently political. Collecting fees from nonconsenting government employees, who are protected by the First Amendment, violates their free-speech rights, the court said.

Private sector employees don’t have that same First Amendment protection in their employer relationships, and most legal analyses of the ruling said the court’s reasoning wouldn’t apply to them. But [Cesar Rosado, co-director of the Institute for Law and the Workplace at Chicago-Kent College of Law] disagrees.

Private sector employees are governed by the National Labor Relations Act, a federal law that requires employers to bargain with unions that employees have voted to represent them, and those unions may set mandatory fees and may lobby for all sorts of public causes, including government spending and minimum wage levels, that some employees may not agree with, he said.

“I don’t see a big difference, therefore, between the First Amendment issue in the public and private sectors,” Rosado said. “Therefore, I can totally see Janus getting extended to the private sector.”

Thoughts?

posted by Rich Miller
Tuesday, Jul 10, 18 @ 9:45 am

Comments

==inherently political==

I think that’s the key phrase. There’s nothing inherently political with private sector negotiations.

Comment by Demoralized Tuesday, Jul 10, 18 @ 9:54 am
YES…. All individuals should have the right to choose.

Comment by Rocky Rosi Tuesday, Jul 10, 18 @ 9:54 am
The underlying logic is that negotiating with public employers impacted policy and therefore was equated to political speech, which is non-chargeable to non-members. This doesn’t apply to private sector employers.

Alito left a trail for them to follow to dismantle the exclusive bargaining representation portion of the NLRA because the Janus dog won’t hunt in the private sector and eliminating exclusive bargaining rep is the next best way to get unions to spend more time putting out fires and less time giving money to Democrats.

Comment by Uncle Merkin Tuesday, Jul 10, 18 @ 9:54 am
==All individuals should have the right to choose.==

Don’t they already have that right? They get to choose whether or not to take the job.

Comment by Demoralized Tuesday, Jul 10, 18 @ 9:56 am
Don’t want to be in a union? Then don’t look for work in a union shop. Why is this so hard?

Comment by Nick Name Tuesday, Jul 10, 18 @ 9:57 am
The Janus decision, like most significant SC decisions, provides a key puzzle piece for future arguments and interpretations. Despite the spin that we’ve heard this was never about “free speech” and I certainly wouldn’t cast those that brought the case as advocates in that area. The intent was to minimize the influence of unions, all unions. Janus was potentially seen as lower hanging fruit but by no means is this the end of the effort.

Comment by Pundent Tuesday, Jul 10, 18 @ 9:59 am
Many of the private trades to advocate for public expenditures (e.g. infrastructure). So, yes, Janus may be extended - if a case gets that far.

Comment by phocion Tuesday, Jul 10, 18 @ 10:00 am
Is the end game to make the majority of Americans “at-will” employees? Don’t act surprised when the quality of public services (including police & fire protection) go WAY down.

Comment by Jocko Tuesday, Jul 10, 18 @ 10:06 am
=== - Jocko - Tuesday, Jul 10, 18 @ 10:06 am:

Is the end game to make the majority of Americans “at-will” employees? Don’t act surprised when the quality of public services (including police & fire protection) go WAY down. ===

The majority of Americans ARE at-will employees, meaning they have no contract.

Comment by Birdseed Tuesday, Jul 10, 18 @ 10:09 am
It makes sense to me! Why should private employees pay dues to a union that backs political opponents that they fundamentally disagree with? I didn’t realize that your trade also determines your political ideology. How about unions start staying out of political campaigns. It seems like the chickens are coming home to roost.

Comment by JakeCP Tuesday, Jul 10, 18 @ 10:10 am
“All individuals should have the right to choose.”

If anyone knows of any clubs or organizations that benefit paying members and give their services away for free to nonmembers, let us know—especially conservative ones.

Comment by Grandson of Man Tuesday, Jul 10, 18 @ 10:14 am
It all depends if the Wagner Act gets chipped away. Anyway, many progressives are probably going to have second thoughts about a constitution that changes with the times..

Comment by Steve Tuesday, Jul 10, 18 @ 10:28 am
Well, Lisa Madigan’s solicitor general, David Franklin, said on the steps of the Supreme Court right after oral arguments that, if the court overturned agency fees for public sector unions, he expected people to challenge them for private sector unions as well. So it’s not surprising at all.

Comment by Dan Vock Tuesday, Jul 10, 18 @ 10:36 am
I’m not sure I see the hair people are trying to split. Everyone has a right to free speech, not just free political speech. So, since the SC has decided multiple times that money is speech and therefore money spent towards collective bargaining is speech, it seems like a very logical extension. I’m not a lawyer so I don’t know why, legally, they decided to separate collective bargaining expenses from political expenses, but it doesn’t make sense to me.

Comment by Perrid Tuesday, Jul 10, 18 @ 10:37 am
To the question- Can and will,, just give it time.

=But Justice Samuel Alito’s majority opinion said that all public sector bargaining is inherently political.=

Patently false by Alito. Of course he thinks speech and money are the same thing, I guess he took the old “money talks” a bit too literally.

Comment by JS Mill Tuesday, Jul 10, 18 @ 10:38 am
If it applies to public sector unions then it would apply to private sector unions. Constitutionally, what would be the difference? Of course, any legal ‘expert’ can try to split hairs on this issue and point to some past ruling, but again, Constitutionally there can be no real separation

Comment by nonBeliever Tuesday, Jul 10, 18 @ 10:43 am
Where exactly should the “free speech” line be drawn? I’m forced to get car insurance in Illinois. Yes, I have a choice of car insurance providers but I must pick a provider and that provider may contribute to causes I disagree with. Are my free speech rights being violated? Better yet, why not apply the free speech argument to government payments in general. The government spends money on things I don’t like. Why isn’t that a violation of my free speech rights?

The entire free speech argument is nonsense.

Comment by Demoralized Tuesday, Jul 10, 18 @ 10:46 am
Law of unintended consequences
Janus has been
Amazing for labor
Putting labor under threat has united us
Like never before.
The front line is forced to
Wake up
Organize
And lead
Janus has forced us
To do better at showing what union do
And getting the frontline
To maintain it
Janus will prove to be
The greatest mistake
The Koch followers ever did.

Comment by Honeybear Tuesday, Jul 10, 18 @ 10:46 am
I’m going to give this time to see what happens. If The unions give up the exclusivity they don’t have to support freeriders. But they don’t want to give up the exclusivity so they have to. If they eventually give it up, other unions can start competing for dues-paying members and try to get them better deals.

Comment by Anon Tuesday, Jul 10, 18 @ 10:47 am
=The government spends money on things I don’t like.=

Comparing taxes to forced dues to a private and political organization is a losing argument.

Comment by Robert the 1st Tuesday, Jul 10, 18 @ 10:48 am
To repeat:
Public sector unions down.
Private sector unions next on the target list.

Comment by thunderspirit Tuesday, Jul 10, 18 @ 10:49 am
==How about unions start staying out of political campaigns. ==

So now you want to take away the union’s free speech rights.

Comment by Demoralized Tuesday, Jul 10, 18 @ 10:50 am
-nonBeliever-

Public employers are government entities, so bargaining with them was (insanely) classified as political speech, which cannot be a required charge to non-members. The argument does not extend to employers that are not governmental agencies. It’s not a matter of the constitution, but a matter of federal labor law’s classification of chargeable services. In the private sector, political, marketing, etc., are non-chargeable, but representational services are. The distinction is that Janus lumped all public representational services under political speech because employers are government entities. Again, it doesn’t hold in the private sector. They’ll find some other argument, but there is a very clear separation in this case.

Comment by Uncle Merkin Tuesday, Jul 10, 18 @ 10:51 am
-Anon-

That is almost certainly the next phase. Alito in his decision allowed unions to withhold representational services while also lamenting the restrictions placed upon workers by the exclusive representation model. So he put out the cheese in the mousetrap. Allow unions to withhold representation that the worker cannot receive anywhere else, and then use that argument to dismantle exclusive rep.

Can you imagine how quickly the Illinois Policy Institute will start up its own competing union?

Comment by Uncle Merkin Tuesday, Jul 10, 18 @ 10:56 am
Demoralised - then corporations shouldn’t be allowed to make political contributions either.

Comment by Ike Tuesday, Jul 10, 18 @ 10:56 am
==Comparing taxes to forced dues to a private and political organization is a losing argument.==

Why? I’m forced to pay taxes. I’m not forced to pay union dues. Seems to me the tax argument is more forceful. Of course the tax argument illustrates the absurdity of all the notion that anyone’s free speech rights are being violated.

This whole issue has absolutely nothing to do with free speech and everything to do with destroying unions.

Comment by Demoralized Tuesday, Jul 10, 18 @ 11:08 am
==then corporations shouldn’t be allowed to make political contributions either.==

The Supreme Court already decided that issue when they made the ruling that money equals speech.

Comment by Demoralized Tuesday, Jul 10, 18 @ 11:09 am
== They’ll find some other argument, but there is a very clear separation in this case. ==

I don’t see that clear line. Even private sector unions get involved in politics to varying extents.

We’re going to be sorting out all the ramifications of the Janus decision for at least the next 25 years.

Comment by RNUG Tuesday, Jul 10, 18 @ 11:15 am
Why can’t this be extended to my investments when corporations use my money to lobby the government? Corporations are using your 401k and deferred comp to lobby–they are speaking for you. And I don’t have a choice about where my pension funds are invested either. And they are being used as speech.

Comment by NoGifts Tuesday, Jul 10, 18 @ 11:24 am
== Why can’t this be extended to my investments when corporations use my money to lobby the government? ==

That’s part of what will need to be sorted out over the next x years. The union Buster’s may well come to regret using the free speech angle to dismantle governmental unions.

Comment by RNUG Tuesday, Jul 10, 18 @ 11:32 am
You have the option not to participate in a pension or contribute to a 401k and still can work for the employer offering it. It’s not a condition of employment, like paying union dues was up until now.

Comment by Robert the 1st Tuesday, Jul 10, 18 @ 11:37 am
When you combine the Citizens United decision with the Janus decision, the logical conclusion is every expenditure advocating an issue or position is a political action and can become a free speech issue. Especially where you have “union shops” in the private sector or are forced to “but” a product or service.

Which particular “coerced” payments will be challenged will depend on how deep the pockets of the objectors are. I expect we will see write a bit of litigation over this topic the next 25 years.

Comment by RNUG Tuesday, Jul 10, 18 @ 11:40 am
@Demoralized 9:56am

Is an individual applying to work for the union or the business? Should be entirely up to the worker whether they’d like to be represented by a union or not.

Comment by SuburbanRepublican Tuesday, Jul 10, 18 @ 11:48 am
What absolutely cracks me up is the non-union people who work for large corporations and those corporations donate to their favored party and it’s off the backs of the workers and they don’t even have a clue they’re doi it… if you belong to a union, you have a right to elect your union officials and you can certainly attend your union meeting and voice your concern if you disagree wt any political funding… listen people, these 1% who are pushing this through your skull, well they don’t care about you, they don’t care about your family, and if you think your gonna benefit, well you need to pull the wool out from over your eyes….

Comment by Iron jack Tuesday, Jul 10, 18 @ 12:15 pm
-Uncle Merlin-

Agreed. Could we end up with a situation where, say, AFSCME and the Teamsters, for example, battle it out for members by offering them better deals? I hope so. To the IPI Union… I could see them doing that. Then I was reminded of “the Producers.” Their plan is to create a sham union and drive it and the members into the ditch by offering them a better deal… then they collect so much money that they decide to give up their scheme and become a real union. Haha.

Comment by Anon Tuesday, Jul 10, 18 @ 12:17 pm
== Is an individual applying to work for the union or the business? Should be entirely up to the worker whether they’d like to be represented by a union or not. ==

An overlooked part of union representation is the advantages it brings to the employer, be it goverment or the private sector. Having a block, especially a large block, all receive basically the same salary (or salary range) and benefits greatly simplifies the paperwork and oversight required by the HR division. There are economies of scale that result in some savings to the employer. Tracking one contract for thousands of employees is a lot easier than tracking thousands of individual employment contracts.

Unions have both pluses and minuses. I am opposed to (and have consistly complained about) abuses of unions but I also recognize they also have some benefits to both the employee and the employer.

Comment by RNUG Tuesday, Jul 10, 18 @ 12:21 pm
== You have the option not to participate in a pension or contribute to a 401k and still can work for the employer offering it. ==

But it is an employment benefit and you often have limited or no choice in the investment options.

Comment by RNUG Tuesday, Jul 10, 18 @ 12:24 pm
== Should be entirely up to the worker whether they’d like to be represented by a union or not.==

== It’s not a condition of employment, like paying union dues was up until now.==

Nobody is forced to take a job represented by a union.

The only people making these arguments are the anti-union zealots.

Comment by Demoralized Tuesday, Jul 10, 18 @ 12:30 pm
-Nogifts ad RNUG-

There is a lawsuit from back in February filed by the operating engineers against the Illinois Municipal Retirement Fund based on the Fund’s lobbying activities as well as the political activities of the corporations in which the fund is invested.

Comment by Uncle Merkin Tuesday, Jul 10, 18 @ 12:53 pm
-Uncle Merkin

“There is a lawsuit from back in February filed by the operating engineers against the Illinois Municipal Retirement Fund ”

I may be wrong but I believe the lawsuit was against the Illinois Municipal League rather than the Illinois Municipal Retirement Fund…

http://www.chicagotribune.com/suburbs/lincolnshire/news/ct-lsr-lincolnshire-federal-anti-labor-lawsuit-tl-0301-20180222-story.html

Comment by Texas Red Tuesday, Jul 10, 18 @ 1:24 pm
RNUG is so right. Unions totally benefit the employer as well
He’s been on the management side.
Good labor/management relations can really make a great place to work. We try to have monthly meetings.
Especially with attendance issues, good stewards can be extremely helpful in setting and maintaining a work culture.
I watch the time sheets. If someone is having problems I check in before it becomes an issue. If I hear shouting I’m there in a split second to defuse and de-escalate. Most folks don’t realize that good stewards hold and maintain accountability and standards in the workplace. I’m doing my job when people aren’t getting in trouble in the first place. Conversely I’m definately to blame if they are. No different than when I was in the Navy.

Comment by Honeybear Tuesday, Jul 10, 18 @ 1:36 pm
Piggy backing on several other comments, could this line of thinking be extended to Gov spending? If I am pro life, using my tax dollars under HB 40 to pay for abortions seems like a clear violation?

Comment by Centennial Tuesday, Jul 10, 18 @ 2:07 pm
“If anyone knows of any clubs or organizations that benefit paying members and give their services away for free to nonmembers, let us know—especially conservative ones.”

The IMA and IRMA advocate pretty heavily for policies that will help Illinois businesses grow, even though not every retail shop or manufacturer pays dues.

Comment by Phenomynous Tuesday, Jul 10, 18 @ 2:35 pm
The difference is Phen, the IMA and IRMA just do lobbying but provide few benefits otherwise
I as an Afscme steward just consulted the 261 page contract
Which was negotiated painstakingly with Quinn
It sets our salaries, benefits and workplace rules
The benefits from union are huge
IMA and IRMA don’t do squat
And talk about politically one sided

Comment by Honeybear Tuesday, Jul 10, 18 @ 3:29 pm
You take an oath to your trade that has been unionized for over 100 years. If you can make it a year before your a member. Disrespect the union your out

Comment by Rabid Tuesday, Jul 10, 18 @ 5:54 pm
Honey bear, 261 page contract? That’s just plain goofy. No one needs that much garbage in a contract.

Comment by Jones Tuesday, Jul 10, 18 @ 7:19 pm