# 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:** 19\ **Page:** 4
**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, 8:53pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/61 "2018-06-28T20:53:41Z")
> [@Akaj](#): > > So, say there’s a public employees union whose members make up 85% of a given blue state’s teachers. They decide to test this situation by negotiating a contract with the state for only their members. The state likes the terms and agrees, then tells the other 15% of workers, “Hey, if you like that deal. join the union. If not, we’ll offer you this (lesser) deal. Take it or leave it.” > > The 15% sue the state. Does the GOP back them? On what grounds? What cause of action does the lawsuit assert? ---
**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, 8:55pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/62 "2018-06-28T20:55:34Z")
> [@puddleglum](#): > > This does not appear to the consensus, [this](http://inthesetimes.com/working/entry/18530/members-only-unions-minority-labor-decline)article says that members-only unions are legal and are active around the country. Consolidate Edison vs NLRB seems to explicitly allow members only unions. > The Indiana Supreme Court in Zoeller vs Sweeney says “The Union’s federal obligation to represent all employees in a bargaining unit is optional” Now I am confused again. ---
**Author:** ![Akaj](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/akaj/32/145_2.png) [@Akaj](https://boards.straightdope.com/u/Akaj)\ **Post date:** [June 28, 2018, 9:03pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/63 "2018-06-28T21:03:50Z")
> [@Bricker](#): > > What cause of action does the lawsuit assert? That’s what I’m asking. (IANAL.) Their beef is that they’re getting inferior compensation for the same work, just because they won’t join the union. Discrimination? Limitation of free speech? Unfair labor practices? So, assuming there’s _some legal basis for a suit – does the GOP go beyond dictating what public employee unions can’t_ do (demand dues from unwilling members) to dictating what they \*must \*do (represent non-paying members the same way they represent members). ---
**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, 9:12pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/64 "2018-06-28T21:12:20Z")
> [@Akaj](#): > > That’s what I’m asking. (IANAL.) Their beef is that they’re getting inferior compensation for the same work, just because they won’t join the union. Discrimination? Limitation of free speech? Unfair labor practices? > > So, assuming there’s _some legal basis for a suit – does the GOP go beyond dictating what public employee unions can’t_ do (demand dues from unwilling members) to dictating what they \*must \*do (represent non-paying members the same way they represent members). My thought it: if there is no basis for the suit, and I can’t think of one, then the GOP does not support it, since it’s doomed to 12(b)(6) dismissal. ---
**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, 9:13pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/65 "2018-06-28T21:13:07Z")
> [@Akaj](#): > > So, say there’s a public employees union whose members make up 85% of a given blue state’s teachers. They decide to test this situation by negotiating a contract with the state for only their members. The state likes the terms and agrees, then tells the other 15% of workers, “Hey, if you like that deal. join the union. If not, we’ll offer you this (lesser) deal. Take it or leave it.” > > The 15% sue the state. Does the GOP back them? On what grounds? They don’t sue the state. They make a complaint to to NLRB that the union has breached their duty of fair representation or they sue the union for breaching that duty. Unless of course, the GOP has amended the NLRA before this happens. ---
**Author:** ![Akaj](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/akaj/32/145_2.png) [@Akaj](https://boards.straightdope.com/u/Akaj)\ **Post date:** [June 28, 2018, 9:18pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/66 "2018-06-28T21:18:28Z")
> [@doreen](#): > > They don’t sue the state. They make a complaint to to NLRB that the union has breached their duty of fair representation or they sue the union for breaching that duty. Unless of course, the GOP has amended the NLRA before this happens. But how can the union have a duty of fair representation if these people have chosen to not be represented? And how could the (sarcasm) party of individual responsibility (/sarcasm) possibly back people who demand something they’ve gone out of their way to avoid paying for? ---
**Author:** ![Akaj](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/akaj/32/145_2.png) [@Akaj](https://boards.straightdope.com/u/Akaj)\ **Post date:** [June 28, 2018, 9:20pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/67 "2018-06-28T21:20:53Z")
> [@Bricker](#): > > My thought it: if there is no basis for the suit, and I can’t think of one, then the GOP does not support it, since it’s doomed to 12(b)(6) dismissal. Wouldn’t “screw the unions some more” be enough reason? Because if unions can actually do this, why wouldn’t they? And then the Janus victory dims quite a bit. ---
**Author:** ![Akaj](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/akaj/32/145_2.png) [@Akaj](https://boards.straightdope.com/u/Akaj)\ **Post date:** [June 28, 2018, 9:33pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/68 "2018-06-28T21:33:07Z")
> [@Sam\_Stone](#): > > Here in Alberta we have lots of trade unions, but no one is forced to use them. Most job sites have union and non-union workers working side by side, at different pay rates. > > To survive in this world, the unions actually have to provide value to the companies. So they provide a trained work force, handle HR disputes, manage employee benefits, take care of drug testing and all the other stuff businesses don’t want to have to do. In exchange, they negotiate higher wages for their workers and better benefits. It’s a win-win situation that has to be so because t operates under market forces. If the unions demand too much from the employer than their value warrants, the employer can go elsewhere. The unions can also strike, which can shut down a job completely and cause the company much harm. But if they threaten that too much, again the companies will just transition to non-union workers. > > This is the best of all worlds. Collective bargaining is allowed, striking allowed, but ultimately the union still has to operate under the rules of the market - just like everyone else. If Janus pushes US unions in this direction, it might not be the defeat we think. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [June 28, 2018, 10:18pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/69 "2018-06-28T22:18:11Z")
> [@Bricker](#): > > My thought it: if there is no basis for the suit, and I can’t think of one, then the GOP does not support it, since it’s doomed to 12(b)(6) dismissal. And if they didn’t? If they pretend otherwise, and vote according to that, who’s going to stop them? ---
**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, 10:28pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/70 "2018-06-28T22:28:58Z")
> [@Bricker](#): > > Now I am confused again. You’re confused because calling these organizations “members-only unions” is confusing. In ordinary speech, when people say “union” they don’t simply mean any organization that represents its members in any way. One wouldn’t call the National Association of Social Workers a union because they advocate for social workers generally and offer various discounts to members. By “union” people ordinarily mean an organization that negotiates pay,benefits, working conditions, grievance and disciplinary procedures etc with an employer where those negotiations result in a binding contract after they are ratified by the employees. “Members-only unions” are not unions by that meaning. By definition, the membership is less that 50% of those in a bargaining unit\* because if more than 50% joined, that union would be the exclusive representative for the bargaining unit and would have to represent members and non-members alike. If fewer than 50% join, then the employer is not obligated to recognize the union or bargain with it. Few employers are going to bargain and sign contracts with individuals or groups unless they are forced to either by law or by the market. Even a generous employer would prefer not to be bound by a contract. Since the “members only unions” generally can’t negotiate wages etc, it never gets to the point where union members get paid $X/hr while non-members are paid $X-2 per hour. And when “member-only unions” do manage to secure a benefit ( such as a day off for MLK day, as described in the article), the employer frequently extends that benefit to non-members as well, for fear that more employees will sign union cards and the employer will be forced to bargain. “Member-only unions” are more similar to the organization I described in post 23 or to a professional association than they are to a traditional union. I’m not a lawyer, but that quote in Zoller appears seems to go back to another case,( Sweeney v. Pence 767 F.3d 654) where it seems to be referring to the idea that the union is compensated for its duty of fair representation by being the exclusive bargaining unit, rather than the idea that the union had a choice in the matter. > [@](#): > > Even so, we engage with the dissent’s position because we believe it overlooks the fundamental fact that distinguishes the union’s duty of representation from the other hypotheticals it presents. That is to say: we believe the union is justly compensated by federal law’s grant to the Union the right to bargain exclusively with the employer. The reason the Union must represent all employees is that the Union alone gets a seat at the negotiation table. See Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 761, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961) (A “union’s status as exclusive bargaining representative carries with it the duty fairly and equitably to represent all employees of the craft or class, union and nonunion.”); Hughes Tool Co., 104 N.L.R.B. 318, 324–25 (1943) (“[A] union could not assess nonmembers for costs arising from contract negotiations for the latter are the exclusive duty and prerogative of the certified representative which the nonmember minority is both entitled to and bound under.”). The powers of the bargaining representative are “comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents.” Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 232, 89 L.Ed. 173 (1944). The duty of fair representation is therefore a “corresponding duty” imposed in exchange for the powers granted to the Union as an exclusive representative. \*I don’t think it’s been mentioned, but a bargaining unit need not include all employees. My state agency has at least four different bargaining units represented by four different unions with four different contracts in addition to those of us who cannot join a union. ---
**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, 11:06pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/71 "2018-06-28T23:06:09Z")
> [@Saint\_Cad](#): > > The power of a union comes from its numbers. Having a non-exclusive union defeats the purpose of unionizing. That’s not correct. You could have multiple unions with some members belonging to one union and others to another union. This used to be quite common in the UK. Typically the split went along job lines. As unions amalgamated the splits tended to disappear. ---
**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, 11:13pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/72 "2018-06-28T23:13:11Z")
> [@elucidator](#): > > And if they didn’t? If they pretend otherwise, and vote according to that, who’s going to stop them? Who is doing the voting, in your question? ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [June 28, 2018, 11:14pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/73 "2018-06-28T23:14:12Z")
> [@Bricker](#): > > Now I am confused again. That is my perpetual state. Eventually it became comforting and familiar. ---
**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, 11:20pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/74 "2018-06-28T23:20:13Z")
> [@Ruken](#): > > That is my perpetual state. Eventually it became comforting and familiar. Heh… I have a pretty good memory, and I’m pretty good at research, but there are areas of the law that I just don’t have the grounding to really understand in detail, and when I try my head hurts. Property, for example. Life estates, contingent remainders, reversions, possibility of reverter, the rule against perpetuities. . . I can parrot back definitions but never really felt I grasped the field. Labor law is another. I have read a half dozen cases since this question arose and I have gotten ten IQ points stupider than I was when I started. ---
**Author:** ![CelticKnot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/celticknot/32/3392_2.png) [@CelticKnot](https://boards.straightdope.com/u/CelticKnot)\ **Post date:** [June 30, 2018, 4:38pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/75 "2018-06-30T16:38:18Z")
For teachers, it’s not a “binary” choice. If a teacher doesn’t want to join a union, there are alternatives. I prefer the Association of American Educators. I get the legal protections and support of a union, but my membership fees don’t go to politicians I totally stand against. In my experience, unions are not about supporting workers, but about gathering and maintaining power and wealth. The only time I went to a union representative about a problem (abusive principal) I was told, “Yeah, we know she’s bad.” Union fees were forcibly removed from my paychecks. I never want to teach in that state again, but I can say it was worth it for the 2 years of misery: really, really good medical insurance. 2 weeks after life-saving brain surgery, we left the state. 😛 ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [June 30, 2018, 8:10pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/76 "2018-06-30T20:10:48Z")
> [@CelticKnot](#): > > For teachers, it’s not a “binary” choice. If a teacher doesn’t want to join a union, there are alternatives. I prefer the Association of American Educators. I get the legal protections and support of a union, but my membership fees don’t go to politicians I totally stand against. > In my experience, unions are not about supporting workers, but about gathering and maintaining power and wealth. > The only time I went to a union representative about a problem (abusive principal) I was told, “Yeah, we know she’s bad.” Union fees were forcibly removed from my paychecks. I never want to teach in that state again, but I can say it was worth it for the 2 years of misery: really, really good medical insurance. 2 weeks after life-saving brain surgery, we left the state. 😛 Why do you think you had good medical insurance? ---
**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 30, 2018, 9:09pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/77 "2018-06-30T21:09:41Z")
> [@k9bfriender](#): > > Why do you think you had good medical insurance? Spot on. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [June 30, 2018, 9:27pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/78 "2018-06-30T21:27:30Z")
Spot off. See Spot off. Off, Spot, off. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [June 30, 2018, 9:42pm UTC](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885/79 "2018-06-30T21:42:14Z")
> [@k9bfriender](#): > > Why do you think you had good medical insurance? Probably for the same reason I do. And for the same reason the teachers in my family do. Organization that want to attract and retain talent offer competitive compensation packages that include good medical insurance. [Previous page](https://boards.straightdope.com/t/scotus-screws-public-sector-unions-the-janus-decision/816885.md?page=3)