Analysis: To Preserve Their Exclusive Right to Representation, NEA, AFT and Other Major Unions Will Even Buy into Janus Ruling

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You wont often find the four largest public-sector unions the National Education Association, American Federation of Teachers, American Federation of State, County and Municipal Employees and the Service Employees International Union and the National Right to Work Legal Defense Foundation all on the same side of a major labor issue.

I take that back. Youll never find it.

But 2020 is a year where anything and everything can happen, so its in keeping with the times that these eternal adversaries should find common ground in the case of Sweeney v. Raoul.

The case is a response to the U.S. Supreme Courts 2018 ruling in Janus v. AFSCME, which banned public-sector unions from charging representation fees to nonmembers. Unions universally decried the 5-4 decision and immediately went to work to mitigate its effects. Though most of these measures were legislative or administrative in nature resignation windows, membership pitches during required orientation sessions for new employees, etc. several unions chose litigation.

Unions in Idaho and Wisconsin filed suit, claiming the loss of nonmember agency fees violated the Takings Clause of the Fifth Amendment of the Constitution. They were unsuccessful.

In Illinois, Local 150 of the International Union of Operating Engineers, which represents some public-sector workers, took a different route. The union claimed that being forced to file grievances on behalf of nonmembers was a violation of the unions First Amendment rights. The case was dismissed in trial court but was successfully appealed to a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit. Oral arguments were heard last week.

The underlying principle of the suit is the unions duty of fair representation. Since the union is the exclusive bargaining agent for all employees in a unit, it must represent all equally, regardless of whether they are union members. Unions defended agency fees as a way to avoid free rider problems, but the Janus ruling changed that dynamic.

Voices on both the right and left began discussing the possibility of members-only unions. Common in Europe, these unions dont have exclusive representation rights and negotiate only on behalf of dues-paying members. This leaves individuals the freedom to set the terms of their own employment, and even allows for multiple unions in the same workplace.

No doubt Local 150 thought using the First Amendment arguments that won the case for the Janus plaintiff against it was a shrewd move. But a host of the nations largest public-sector unions saw the suit as a threat to exclusive representation.

In an amicus brief, attorneys for NEA, AFT, AFSCME, SEIU and their Illinois affiliates laid out their reasons for opposing the Local 150 lawsuit.

Though they stated that Janus was wrongly decided, NEA et al. argued in the brief that a Local 150 victory could undermine longstanding collective bargaining arrangements and even chip away at the validity of public-sector collective bargaining itself. The major unions went on to cite the majority ruling in Janus multiple times.

The unions approvingly noted the Janus reasoning that exclusive representation gives them a privileged place in negotiations over wages, benefits and working conditions and that representing nonmembers is a necessary concomitant to that exclusivity. Exclusive representation without an obligation to represent nonmembers would leave those employees without any representation or means to gain it. That, according to the Janus ruling, would lead to serious constitutional questions.

NEA et al. also appear to have wholeheartedly accepted the Janus majoritys logic that no union is ever compelled to seek exclusive status. They stated that the duties involved in representing nonmembers do not impose substantial restrictions on a unions core rights of expression and association. Whats more, they said, performing those duties furthers the unions interests in keeping control of the administration of the collective-bargaining agreement.

Local 150 responded to these criticisms by saying it is being misunderstood. The union said it doesnt want to erode exclusive bargaining, merely charge nonmembers for services. But the major unions oppose this reasoning as well.

Many unions, they stated, believe that fee-for-service arrangements promote a detached, transactional view of the relationship between a union and the employees it represents, rather than the sense of solidarity and engagement within the workplace that is ultimately the most significant source of unions power.

NEA at al. concluded: Janus confirms the central role the duty of fair representation plays in ensuring the constitutionality of exclusive representation. That duty is also consistent with broad principles of First Amendment doctrine. Any conclusion to the contrary would jeopardize not only fundamental aspects of labor relations in the public sector but a broad array of duties that are well recognized under the law.

Union allies and opponents will continue to argue about whether exclusive representation infringes on individual rights. Whats clear from this brief is that unions prize their monopoly on bargaining above all else and will embrace the existence of nonmembers as a small price to pay for retaining that privilege.