By SARATH NINAN MATHEW & SIDDHARTH SONKAR
On June 27, 2018, the Supreme Court of the United States in Janus v. AFSCME, overturned the nearly forty-year-old precedent of Abood v. Detroit Board of Education.[i] Janus invalidated an Illinois law which required ‘non-recognized’ public sector union workers to contribute towards union funds by paying “agency fees.”[ii] The term ‘agency-fees’ refers to a portion of the union fund that is collected from non-member workers. In Janus, the Supreme Court finds it unconstitutional to mandate payment of agency fees despite non-members’ enjoying the fruits of collective bargaining arrangements.[iii]
Whereas its predecessor Abood considered the balance of free speech and labour welfare, Janus not only fails to achieve such a balance, but in the name of doing so, sacrifices labour welfare altogether.
The Abood position
In order to appreciate the balance envisaged in Abood, it is important to understand the nuances riddled in the interplay between free speech and labour welfare. The right to free speech involved here takes the the form of a negative right: the right to not speak. The concern is that a union represents a specific political or ideological belief to which all workers may not subscribe. Consequently, mandating non-members to contribute to any particular union runs the risk of forcing a person to bolster an opinion to which she is opposed. This would be a violation of her right to refrain from speaking.
The complementary relationship between mandatory contributions and labor welfare exists due to the prevalence of ‘recognized unions.’ Around the globe, recognized unions have been used to tackle drawbacks associated with the multiplicity of unions. Such multiplicity makes it extremely difficult for a trade union to maintain quality membership, in turn eroding its bargaining power. When a recognized union receives contributions, it protects its collective bargaining power, leading to effective unionization. Therefore, such contributions play a crucial role in ensuring worker welfare.
The Supreme Court while adjudicating Abood recognized the inherent worth of both these interests. It ruled that contributions can be mandated from non-members only if the union expends such funding solely toward employment-related matters, rather than promoting specific ideological beliefs.[iv] By refusing to deprive recognized unions of funding while ensuring that workers’ contributions do not subsidize specific political initiatives or beliefs, the Supreme Court’s position accommodated both workers’ employment related interests and free speech.
Issues with Janus
(i) A Misunderstanding of Free Speech
The majority in Janus refers to an earlier Supreme Court decision, West Virginia Board of Education v. Barnette[v] to judge the importance of the right to remain silent.[vi] Admittedly, Barnette gives a broad understanding of the negative right to free speech. However, Janus failed to take note of the specific facts in Barnette which warranted such a broad conception. Barnette concerned a petitioner being forced to swear an oath in contravention to his religious beliefs.[vii] Here, the interests were not competing with one another. In fact, in Barnette, religious freedom and free speech complemented one another. Therefore, the court was justified in adopting a broad interpretation here.
The facts of Janus directly involve contradictory interests of labour welfare versus free speech. Therefore, Barnette is distinguishable on facts. Instead, Pickering v Board of Education,[viii] cited by the minority is the relevant authority in this context. Pickering testifies that the first amendment jurisprudence is flexible enough to take into account employment-related interests. In this case, the court had held that first amendment rights of employees in the public sector are subject to legitimate interests of the employer.[ix] The court recognized that an absolutist protection of first amendment rights would hamper the smooth functioning of government offices.
Drawing a parallel, the facts of Janus pit first amendment rights against an equally important competing interest: the protection of collective bargaining power through strengthening trade unions. This in turn allows workers an opportunity to reclaim their dignity and protect themselves against exploitation. This is as essential as the smooth functioning of government offices. The majority in Janus ought to have adopted the balancing exercise in Pickering rather than sacrifice labour welfare in the name of free speech.
(ii) Freeloading Hurts Collective Bargaining
Janus analyzes freeloading as a concern on two counts: moral and economic. On the moral count, Janus argues that the simple act of receiving a benefit does not make an employee morally liable to contribute to the union.[x] Based on a highly libertarian conception that premises morality on consent, Janus would be justified on this count. However, regardless of a moral duty, there exist strong economic benefits to the labour force, and by extension the state as a whole, by mandating contributions. When contributions are not made mandatory, most workers are subsumed by a powerful, short-term economic incentive to withhold their union dues. A consequential reduction in revenue compels unions to demand greater contributions from existing members. This in turn makes union-membership highly undesirable due to excessive economic costs associated with membership, shouldered entirely by a small section of the workforce. The unattractiveness of union-membership leads to the exit of a sizable number of workers, simply to avoid these associated costs. Dilution in existing membership hurts unionization, weakening the collective bargaining power of workers.
In response to this, the majority in Janus relies on statistics to observe that despite 28 states’ prohibiting agency fees, millions of employees join unions in the public sector.[xi] However, the majority did not consider the extent to which union membership would have increased, had contributions been mandatory. The economic argument dictates that unions would have had more funds, even in these areas, had contributions been mandatory, making collective bargaining stronger than it is at present.
Janus‘s Incompatibility with Ground Realities
Past experience highlights how precluding unions from collecting agency fees results in ‘free riding,’ which in turn reduces resources needed to afford transaction-costs associated with negotiating contracts and general worker welfare.[xii] By encouraging free-riding, Janus may result in causing irreparable damage to collective bargaining. While realizing its consequences may take years, Illinois Economic Policy Institute suggests that overturning Abood would result in severely shrinking the economy and reducing public sector wages. It indicates that wages of government employees, both at the state and local levels would diminish by 3.6 percent, resulting in a loss of $1,810 in wage and salary income per worker.[xiii] The Institute further states that unionization in the public sector would substantially shrink by 8.2 percentage points, predictably translating into a loss of 726,000 members over time. Specifically, there could be an estimated decrease by 189,000 members in California, 136,000 members in New York, and 49,000 members in Illinois.[xiv]
The ruling also disproportionately hurts African-American workers, forming a large fraction of union members in the state and local government, discouraging their unionization and in turn, undermining their political influence. African-American workers are statistically (1.0 and 1.3 percentage points) more likely to be members of labour unions, as compared to White, Non-Latino American employees.[xv] The weakening an already fragile bargaining power, would allow state leverage over public employees such as teachers, police officers, firefighters, and other public workers to increase. As a result of increased asymmetry in the employer-employee relationship, employer pressure could cripple wages for public sector workers.[xvi]
The Supreme Court should have retained its earlier position in Abood. Instead, it has disregarded stare decisis, stirring labour jurisprudence violently. The majority decision in Janus will cause burgeoning turbulence for a while in the lives of the American worker when she is already fragile.[xvii] In an attempt to save workers’ free speech already between cushions, it has slipped and hurt workers’ interests instead.
[i] Abood v. Detroit Board of Education, 431 U.S. 209 (1977).
[ii] Janus v. AFSCMEC, No. 16-1466, slip op. at 2 (U.S. 2018).
[iv] Supra note 1, at 254.
[v] West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
[vi] Supra note 2, at 9.
[vii] Supra note 5, at 629.
[viii] Pickering v. Board of Education, 391 U.S. 563 (1968).
[ix] Id., at 568.
[x] Supra note 2, at 13.
[xi] Id., at 12.
[xii] Frank Manzo & Robert Bruno, After Janus The Impending Effects on Public Sector Workers from a Decision Against Fair Share, Ill. Econ. Pol’y Inst., 3 (May 9, 2018), https://illinoisepi.files.wordpress.com/2018/05/ilepi-pmcr-after-janus-final.pdf (Last visited July 25, 2018); Joe Davis & John Huston, Right-to-Work Laws and Free Riding, 31(1), Econ. Inquiry 52-58 (1993).
[xiii] Id., Frank Manzo & Rober Bruno, at 3-4.
[xvi] Id., at 6-7.
[xvii] Steven Greenhouse, Unions are as weak as they’ve been in a century. The Supreme Court’s Janus decision will gut them further, L.A. Times, June 27, 2018, http://www.latimes.com/opinion/op-ed/la-oe-greenhouse-janus-supreme-court-20180627-story.html (last visited July 25, 2018).