As we discussed back in August, the decision of the Supreme Court in the Janus v. AFSCME case took a huge bite out of unions in that they could no longer collect fair share fees. Well, the threat to unions may not be over, with employees and conservative advocacy groups taking alternative routes to attacking unions.
In several lawsuits filed across the country, former fair share members are suing their unions for years of dues that were collected from the employees while those fees were deemed constitutional. As of yet, these lawsuits are still in their beginning stages, but it is difficult to see any of these achieving much success, as the fees were determined to be constitutional at the time they were taken. To succeed, those plaintiffs need to show a violation of “clearly established law,” but the law at the time allowed for collection of those fees. Tough to see those going anywhere.
However, a second form of attack is beginning in the form of lawsuits against the idea of exclusive representation as a whole. These are based off of the brief dictum of Justice Alito in the Janus decision, where he said exclusive representation “substantially restricts the non-members’ rights” in a way that “would not be tolerated in other contexts.”
Conservative groups have latched onto this dictum and filed lawsuits in several jurisdictions over employees’ free speech rights and the right not to be represented by exclusive representatives, even when there is no requirement that they pay for such representation. This includes a lawsuit in the state of Minnesota, filed by political science professor Kathleen Uradnik at St. Cloud State University, who wishes not to be represented by any employee organization for the negotiation of terms and conditions of her employment.
In her motion for a preliminary injunction against the Inter Faculty Organization, Ms. Uradnik argued that not only does her exclusive representative infringe on her rights to free speech, but the Public Employment Labor Relations Act (PELRA) as a whole infringes on her rights, by requiring her exclusive representative to negotiate on her behalf.
Citing the U.S. Supreme Court decision in Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), which covered the exact same issue over 30 years ago, the judge dismissed Uradnik’s motion for an injunction, stating that the likelihood of her lawsuit succeeding was too slim.
However, if recent Supreme Court decisions have shown us anything, it is that years of precedent can do very little against the changing of both political tides and Supreme Court ideology. Because of this, one can be sure there is much more to come on this front as the appeals come in, and with plenty of money behind the groups filing these suits, we can expect the Knight decision to be re-visited by the Supreme Court sooner rather than later.
Going deeper into the ramifications of the Knight decision being overturned, it is difficult to imagine what would be left of PELRA if the idea of an exclusive representative for public employees was abolished. Yes, it would allow for employees to negotiate their own terms and conditions of employment, but it would also allow for multiple employee representation groups, and the public employers in the state would be required to negotiate separately with them on a regular basis. As negotiators for employers around the country would likely agree – this would be an administrative quagmire, time consuming, and may ultimately prove to be unworkable. Again, nothing has been done to abolish unions as a whole, but destabilizing the exclusive representation model could have many undesirable consequences beyond the conservative sought-after erosion of the union political power.
We will keep you abreast of any developments on this front as they come. If you have any questions about this or any other representation issues, feel free to give us a call at the Wiley Law Office.