Thursday, July 19, 2018

Organizations Already Seeking Extension of Janus Ruling

In the Janus decision which found compulsory payment of fair share fees unconstitutional for public sector employees, Justice Sam Alito wrote that exclusive representation of individuals in union represented public sector job titles “significantly restricts the rights of individual employees” and is a “significant impingement on associational freedoms that would not be tolerated in other contexts.”

With these words, and the Janus decision itself, organizations are already charting the expansion of the decision to destroy the exclusive right to represent public sector employees who hold job titles within a bargaining unit. The Buckeye Institute already has filed suit in Minnesota on behalf of a St. Cloud University professor against the union representing faculty there, claiming that the Janus decision clarified that the First Amendment protects the professor from being forced to associate with a union.

Similarly, a spokesman for the National Right to Work Legal Defense Foundation, which brought suit on behalf of Janus in the landmark case, said it too would likely file a lawsuit challenging the rights of unions to exclusively represent all public sector employees in job titles within a bargaining unit.

In most states, including Illinois, unions that represent public sector employees are entitled to be the exclusive representative for everyone in the job titles that the union represents. While individual employees have the right to forego union membership, and now even paying fair share fees, the union still has the right and responsibility to represent every employee in bargaining unit job titles regarding their terms and conditions of employment.

Since the Janus ruling, unions have been evaluating the scope of their responsibilities for representing individual non-union members in grievance and discipline actions, and the possibility of charging those non-members for representation of their individual claims against an employer. The ability of public sector unions to deny or charge a fee for service to individual non-union member employees for representation involving actions specific to them would take some of the financial sting out of the Janus ruling.

On the other hand, if these new lawsuits take hold and destroy the exclusive representation that public sector unions enjoy, they might quickly lose their power at the negotiating table with public sector employers. We will keep you updated as these important issues develop.