# SCOTUS screws public-sector unions. The Janus decision. **URL:** \ **Category:** Great Debates\ **Created:** [June 28, 2018, 1:49am UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885 "2018-06-28T01:49:23Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [June 28, 2018, 10:18am UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/21 "2018-06-28T10:18:15Z")
> [@asahi](#): > > I probably wouldn’t object to this decision if it weren’t the same court that said money is speech. I’ve never understood this framing of the decision. Wasn’t it really the other way around? The law, IIRC, was that speech could be so valuable to a candidate that it should be treated as a donation, even if no money changed hands. Maybe striking that down was bad, but it seems to me that the court _rejected_ the idea that money is speech. ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [June 28, 2018, 10:52am UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/22 "2018-06-28T10:52:17Z")
> [@Saint\_Cad](#): > > I have a simple solution - if you do not want to be a member of the union, fine. BUT you are also not covered by any collective bargaining meaning you need to go and negotiate you own contract. I agree. Unions perform a vital role in protecting the rights of employees. Anyone who doubts this should look up employment conditions 150 years ago. But coercion is bad - both ways. Just as no one should be forced to be part of a union so a union should not be forced to negotiate on behalf of those who are not its members. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [June 28, 2018, 11:43am UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/23 "2018-06-28T11:43:02Z")
> [@](#): > > There is precedent for such arrangements. Some States have laws providing that, if an employee with a religious objection to paying an agency fee “requests the [union] to use the grievance procedure or arbitration procedure on the employee’s behalf, the [union] is authorized to charge the employee for the reasonable cost of using such procedure.” E.g., Cal. Govt. Code Ann. §3546.3 (West 2010); cf. Ill. Comp. Stat., ch. 5, §315/6(g) (2016). This more tailored alternative, if applied to other objectors, would prevent free ridership while imposing a lesser burden on First Amendment rights. That works for some issues, but not for others. I am a public employee but because I am management, I am not represented by a union. (Which is fine, I knew it when I took the job). There is an organization which is union-like in some ways (representing us in grievances/disciplinary hearings , negotiating discounts with third parties ) but the real difference is that it cannot collectively bargain with the state government regarding wages, benefits and working conditions. Regarding those issues, the organization can do nothing other than attempt to persuade elected officials by organizing letter writing campaigns , testifying at budget hearings, etc. The organization can and does refuse to represent non-members in grievance/disciplinary matters and they could certainly offer representation and charge the non-member for the costs. But that doesn’t work so well for other issues- our scheduled raises were withheld for years after the 2008 financial crisis. When this organization was finally successful in obtaining them years later, both members and non-members got the raises. If it is successful in persuading the state government not to raise our health insurance premiums , both members and non-members will benefit. I am not certain if this is a legal problem (it is entirely possible that there is some law that requires my state to treat all employees in a particular group the same ) or if it is a strictly practical problem ( it’s administratively easier to give everyone the raise and charge everyone the same health insurance premium rather than determining who is a current member and who is not) but there are definitely a large number of free riders who want the work- related benefits that this organization secures but who are unwilling to pay the costs (at least as long as they will still receive the benefits). \* - And particularly annoying to me are those aren’t members, don’t pay dues and them complain that the organization isn’t doing a good enough job for them ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 28, 2018, 12:02pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/24 "2018-06-28T12:02:31Z")
The “free loading” argument is a red herring. The union negotiates the contract with the understanding that it will be required to represent non-members. In exchange, they get exclusive rights to represent the workers. This is a bargained-for position that is agreed upon by sophisticated parties and unions still exist in those areas where this has been the law for years (e.g. right to work states) ---
**Author:** ![Khendrask](https://avatars.discourse-cdn.com/v4/letter/k/3e96dc/32.png) [@Khendrask](https://boards.straightdope.com/u/Khendrask)\ **Post date:** [June 28, 2018, 12:04pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/25 "2018-06-28T12:04:06Z")
> [@Quartz](#): > > I agree. Unions perform a vital role in protecting the rights of employees. Anyone who doubts this should look up employment conditions 150 years ago. Yep. 150 years ago conditions were horrible. No age restrictions on any jobs, no safety standards, no OSHA, but believe me, times have changed. ---
**Author:** ![BrotherCadfael](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@BrotherCadfael](https://boards.straightdope.com/u/BrotherCadfael)\ **Post date:** [June 28, 2018, 12:13pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/26 "2018-06-28T12:13:48Z")
I was a state employee back in the '80s. My department wanted to give me and other IT staff a raise, due to serious retention problems. The union fought it tooth and nail, eventually winning. So, had I been required to pay an agency fee for the union’s work on my behalf, I would have been paying them to oppose my raise. I would not have been happy with this, to put it mildly. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [June 28, 2018, 12:14pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/27 "2018-06-28T12:14:19Z")
> [@Khendrask](#): > > Yep. 150 years ago conditions were horrible. No age restrictions on any jobs, no safety standards, no OSHA, but believe me, times have changed. And without a strong opposing force, they can change back. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 28, 2018, 12:31pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/28 "2018-06-28T12:31:41Z")
> [@Czarcasm](#): > > And without a strong opposing force, they can change back. Union membership has declined markedly over the last 60 years (except in the public sector) and conditions have not changed back. Therefore the strong opposing force hasn’t been unions. Regards, Shodan ---
**Author:** ![Ann\_Hedonia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ann_hedonia/32/319_2.png) [@Ann\_Hedonia](https://boards.straightdope.com/u/Ann_Hedonia)\ **Post date:** [June 28, 2018, 1:32pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/29 "2018-06-28T13:32:37Z")
> [@Bricker](#): > > Sure. Unless, for example, the union provides employers with a sense of confidence as to training and competence that is lacking in non-union people. But if the union choices are as competent as the non-union, then sure, why not? > [@Desert\_Nomad](#): > > And so as an employer, I am going to be more likely to hire non-union people because they will be cheaper for my business. A public sector employer will be the same since non-union people will be cheaper… and they don’t want to be part of the union anyway. My business has no full-time employees. Or part-time employees. I do, however, have a small pool of contract workers that I hire on an “as-needed” basis. They belong to unions. And I hire them as union employees and every time I write a paycheck, I send a second check to their union for my share of their benefits. I am not required to do this, in fact, it’s quite unusual. But I want to be able to contribute to the benefits of my employees, even if I can only offer irregular employment. And from a practical point of view, the guys are more likely to “choose” me if they have multiple offers for the same days, because working for me counts towards the minimum hours they have to work to receive full benefits. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [June 28, 2018, 1:44pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/30 "2018-06-28T13:44:22Z")
> [@Saint\_Cad](#): > > I have a simple solution - if you do not want to be a member of the union, fine. BUT you are also not covered by any collective bargaining meaning you need to go and negotiate you own contract. If you come to my school district with its anti-teacher superintendent good luck getting anything remotely close to what’s in the contract. I would be in favor of this. (Sounds like everyone else is too.) But I have a legal question. Suppose you take it a step further. Suppose a union demands as part of their contract negotiations that union employees be paid $X more than whatever non-union employees are paid? Is this legal? If so, then it would make sense for unions to insist on a clause of this sort, in order to pressure non-union employees to join. ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [June 28, 2018, 2:05pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/31 "2018-06-28T14:05:07Z")
> [@Fotheringay-Phipps](#): > > I would be in favor of this. (Sounds like everyone else is too.) > > But I have a legal question. Suppose you take it a step further. Suppose a union demands as part of their contract negotiations that union employees be paid $X more than whatever non-union employees are paid? Is this legal? > > If so, then it would make sense for unions to insist on a clause of this sort, in order to pressure non-union employees to join. I would think a union would have to do something in order to make joining it attractive for a worker. ---
**Author:** ![puddleglum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puddleglum/32/137_2.png) [@puddleglum](https://boards.straightdope.com/u/puddleglum)\ **Post date:** [June 28, 2018, 2:53pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/32 "2018-06-28T14:53:18Z")
> [@Snowboarder\_Bo](#): > > Steele v. Louisville & Nashville Railroad > > J.I. Case v. NLRB > > NLRB v. Miranda Fuel Co. > > Communications Workers of America v. Beck What all these decisions say is that if a union has become the exclusive bargaining unit for employees of a business they have to represent all of the employees. They do not address whether it is legal for a union to not be the exclusive bargaining unit for all the employees in a business. The congress needs to pass a law explicitly allowing unions to only bargain for its members, allowing multiple unions in a single work place, and allowing employers to choose which unions they bargain with. The first is probably already legal but there is some dispute about that. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 28, 2018, 3:12pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/33 "2018-06-28T15:12:46Z")
> [@puddleglum](#): > > What all these decisions say is that if a union has become the exclusive bargaining unit for employees of a business they have to represent all of the employees. They do not address whether it is legal for a union to not be the exclusive bargaining unit for all the employees in a business. > The congress needs to pass a law explicitly allowing unions to only bargain for its members, allowing multiple unions in a single work place, and allowing employers to choose which unions they bargain with. The first is probably already legal but there is some dispute about that. That’s what I’m trying to understand. Is there a law that says a union must be the exclusive representation for all employees? It’s pretty clear to me that _if_ the union is exclusive, there is a law that mandates their representation of non-union members. The piece of the puzzle I don’t understand is: what if they’re not exclusive? Since the OP says, “The problem is that unions are required by law to represent everyone in the unit, whether they are a member of the unit or not, in collective bargaining,” and doesn’t draw the “exclusive/non-exclusive” distinction, I was hoping he’d weigh in. The list of court cases appearing in post 32 all assume exclusive representation, as **puddlegum** is suggesting. If that’s wrong, I’d appreciate someone quoting the text from the case that explains this distinction. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [June 28, 2018, 3:24pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/34 "2018-06-28T15:24:47Z")
Any lawyers want to take a gander at the legal question in post #30? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 28, 2018, 3:38pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/35 "2018-06-28T15:38:44Z")
> [@Fotheringay-Phipps](#): > > I would be in favor of this. (Sounds like everyone else is too.) > > But I have a legal question. Suppose you take it a step further. Suppose a union demands as part of their contract negotiations that union employees be paid $X more than whatever non-union employees are paid? Is this legal? > > If so, then it would make sense for unions to insist on a clause of this sort, in order to pressure non-union employees to join. Not my area of the law, but. . . I am not aware of any reason it would not be legal. I welcome correction on the issue. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [June 28, 2018, 3:43pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/36 "2018-06-28T15:43:42Z")
Thanks. What I was wondering was if it would be construed as a demand that some other group be paid less, and if so, whether there are laws against that. Because that’s effectively what it would be - a cap on salaries for non-union workers, since if market forces pushed them higher than “union wages minus $X”, the employer would be constrained from paying them that amount lest they trigger increases for all union workers. If it’s legal and I were a union, I would insist on such a clause in all contracts, with $X being significantly more than union dues. I suspect the unions could win that clause, and would think very few people would decline union representation under such circumstances. ---
**Author:** ![Buck\_Godot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/buck_godot/32/6573_2.png) [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)\ **Post date:** [June 28, 2018, 4:02pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/37 "2018-06-28T16:02:02Z")
I think the solution to this might be for the union to play hardball and have their negotiations with a company include a clause that says non-union members should be paid $x less than their union counterparts. Where x is a quantity that works out over the year to slightly more than the union membership fee, but that no member should be fired for joining the union. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 28, 2018, 4:34pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/38 "2018-06-28T16:34:53Z")
> [@Fotheringay-Phipps](#): > > Thanks. What I was wondering was if it would be construed as a demand that some other group be paid less, and if so, whether there are laws against that. Because that’s effectively what it would be - a cap on salaries for non-union workers, since if market forces pushed them higher than “union wages minus $X”, the employer would be constrained from paying them that amount lest they trigger increases for all union workers. > > If it’s legal and I were a union, I would insist on such a clause in all contracts, with $X being significantly more than union dues. I suspect the unions could win that clause, and would think very few people would decline union representation under such circumstances. Sure. And unions could even stop collecting dues at all, and just add a provision that if there are N employees, union or not, then the employer must remit a check yearly to the union for N\*$unionDues. No violation of First Amendment rights there that I can see. ---
**Author:** ![Darren\_Garrison](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/darren_garrison/32/92_2.png) [@Darren\_Garrison](https://boards.straightdope.com/u/Darren_Garrison)\ **Post date:** [June 28, 2018, 4:44pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/39 "2018-06-28T16:44:02Z")
> [@Buck\_Godot](#): > > I think the solution to this might be for the union to play hardball and have their negotiations with a company include a clause that says non-union members should be paid $x less than their union counterparts. Where x is a quantity that works out over the year to slightly more than the union membership fee, but that no member should be fired for joining the union. Yes, that is a great way to show that unions aren’t corrupt criminal thugs and gain widespread public support! ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [June 28, 2018, 4:57pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/40 "2018-06-28T16:57:50Z")
Quote: Originally Posted by **Bricker** [https://boards.straightdope.com/sdmb/images/SultanThemeVB3R/buttons/viewpost.gif](https://boards.straightdope.com/sdmb/showthread.php?p=21051616#post21051616) \*That’s what I’m trying to understand. Is there a law that says a union must be the exclusive representation for all employees? It’s pretty clear to me that _if_ the union is exclusive, there is a law that mandates their representation of non-union members. The piece of the puzzle I don’t understand is: what if they’re not exclusive? Since the OP says, “The problem is that unions are required by law to represent everyone in the unit, whether they are a member of the unit or not, in collective bargaining,” and doesn’t draw the “exclusive/non-exclusive” distinction, I was hoping he’d weigh in. The list of court cases appearing in post 32 all assume exclusive representation, as **puddlegum** is suggesting. If that’s wrong, I’d appreciate someone quoting the text from the case that explains this distinction.\* There is- although I didn’t know it until I just looked. National Labor Relations Act (29 U.S.C. §§ 151-169) Quote: Sec. 9 [§ 159.] (a) [Exclusive representatives; employees’ adjustment of grievances directly with employer] Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective- bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment. It doesn’t appear that the union can choose not to be the exclusive representative for everyone in the bargaining unit. [Previous page](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885.md?page=1) [Next page](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885.md?page=3)