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It’s Been One Year Since the Supreme Court Heard the Janus Case. The Lawsuits Challenging Unions Aren’t Anywhere Near Over

By Carolyn Phenicie | March 5, 2019

Activists rally in front of the U.S. Supreme Court in Washington, D.C., on Feb. 26, 2018, the day of oral arguments in Janus v. AFSCME. (Photo credit: Alex Wong/Getty Images)

Home health aides paid by the state of Illinois last week filed a petition to the U.S. Supreme Court, arguing that they should receive back dues they were required to pay to a union they didn’t consent to join.

That case, Riffey v. Pritzker, is one of several dozen pending lawsuits that seek to further refine the relationship between public-sector employees, unions, and governments since the Supreme Court began scaling back union rights in 2012. The latest and most impactful of those rulings, Janus v. AFSCME, which ended mandatory dues payments by public-sector employees, was argued a year ago last week.

The cases pending before courts around the country fall into a few general categories. “Clawback” cases like the one in Illinois seek the refund of past union dues. Others seek to end time limits on when objecting employees can withdraw from unions, or to challenge unions’ right to exclusively negotiate with employers on workers’ behalf.

Those lawsuits, experts said, could amplify the impact Janus has on union membership rolls and coffers. Though some union officials had planned for a substantial hit in the wake of the high court’s ruling, that isn’t evidenced so far in unions’ public disclosures.

The overall rate of public-sector union membership fell about half a percentage point from 2017 to 2018, but the rate for local government employees, like teachers, actually grew, according to data from the Bureau of Labor Statistics.

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Among states that had previously required dues payments from public employees — where Janus should have had the biggest impact — the figures are mixed. The rate of union membership, including both the public and private sectors, dropped in California, Connecticut, Illinois, Minnesota, New Jersey, and New York, but it rose in Maryland, Massachusetts, Pennsylvania, Rhode Island, and Washington.

The American Federation of Teachers, the country’s second-largest teachers union, added 88,500 members between November 2017 and November 2018, “more than offsetting” the 84,600 members the union “lost with the stroke of a pen” after the Janus decision, Andrew Crook, AFT’s assistant director for media affairs, said in an email.

The group has also won 11 elections to establish a union in a workplace since Janus, tripled its membership budget since 2014, and “nearly doubled” the number of voters contacted in the 2018 elections, he added.

AFT President Randi Weingarten told Senate Democrats last summer that members were sticking with a union, and members’ level of union advocacy in anticipation of the decision was unprecedented in her two-decade career.

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The National Education Association, the country’s largest teachers union, did not respond to a request for comment.

Experts offered various reasons for the so-far limited decline in union membership, including the short window between the Janus decision and data reporting to the federal government, and, despite widespread campaigns by right-to-work groups, a general lack of knowledge about the ruling.

“Considering that the decision was barely a half-year old at that point [when data was submitted], I think that it’s probably fair to say that the worst is yet to come. And that’s just assuming that the Janus decision is limited to what unions hope it’s limited to,” Joseph Slater, a law professor at the University of Toledo, told The 74.

Meaning, according to Slater, that those pending lawsuits could further reduce membership rolls and union coffers.

The Riffey case, which is supported by the National Right to Work Foundation, seeks the return of $32 million in past dues from the state’s Service Employees International Union chapter.

The particular issue in the Riffey case is whether all home health aides in the state should be deemed members of the same class; lower courts have ruled they are not. In general, unions fighting these clawback lawsuits have said they were relying on Supreme Court precedent at the time that allowed the collection of mandatory dues.

The union “followed the then-applicable laws, because prior to Janus, collection and use of compelled agency fees was lawful,” an AFSCME affiliate in Washington state argued in a brief filed a similar case. A federal court threw out that Washington case, which also sought repayment of past dues.

William Messenger, a staff attorney with the National Right to Work Foundation, who argued Janus and is the lead attorney on Riffey, disputed that such a defense is viable.

“There’s no such thing as a good faith defense to First Amendment violations. The defense doesn’t exist,” he said.

At a minimum, he added, unions should have been on notice for the past several years, when the Supreme Court made smaller changes to union laws in the pre-Janus cases in 2012 and 2014.

“The idea that they were innocent in this situation just doesn’t hold water,” Messenger said.

Requiring unions to repay decades’ worth of dues would be a “doomsday scenario” for unions financially, Slater, the University of Toledo professor, said.

As it is, they’re already spending more to fight this wave of lawsuits at the same time they are grappling with lower dues revenue, he noted.

Other lawsuits are seeking to overturn limits on the time in which dissenting members may withdraw their union membership.

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And still other lawsuits are challenging exclusive representation, the idea that only one union can represent workers before their employer.

In a case pending before a Massachusetts state court, several educators at the college and K-12 levels are challenging a law that forbids non-union members from voting on contracts or otherwise participating in union decisions.

Forcing teachers to join the union to have a say in workplace policies amounts to illegal coercion, Bruce Cameron, an attorney for the dissenting teachers, told The 74.

“The real evil, from our point of view, is our clients being whack-jacked into supporting union politics in exchange for having a voice in what I think most employees would consider to be one of the most important aspects of their life,” he said.

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