It so happens, Janus was the Roman god of gates, doors and transitions. He had two faces, looking to the past and future. It’s a perfect a model for the state of Alaska’s lawsuit addressing public employee unions. We’ve arrived at a unique intersection of law and policy. The state’s suit presents two aspects, legal and practical. The Alaska Supreme Court will ultimately decide the legal merits. However, notwithstanding the Superior Court’s preliminary ruling, it’s fair to conclude the Attorney General has it right.
The state’s critics are correct that the United States Supreme Court’s opinion in Janus only addressed non-member (or agency fee) employees. However, anyone reading the opinion will recognize that its principles apply to all public employees. To conclude otherwise would mean non-member employees had greater First Amendment rights than union member employees. It’s an uncomfortable conclusion. It’s also logically inconsistent. Interpreting Janus as only protecting non-members’ First Amendment rights does nothing but trigger another constitutional claim for a violation of the Equal Protection clause. And, practically speaking, it raises an interesting question: Why would any union argue that its members’ rights were valued less than those of non-members?
The argument that other employment-related terms and conditions (such as health benefits) are subject to annual elections, and, therefore, annual election periods for opting in or out of the union must be permissible fails to appreciate that health benefits are not a constitutional right. Health benefits are based on contract law principles. And even in that context, elections outside the specified dates are allowed for qualifying conditions. In contrast, Janus implicates two First Amendment rights, freedom of speech and freedom of association. Why couldn’t elections outside a specified 10-day period be made if a union member decided to withhold consent based on new conditions not present when consent was given? Constitutional rights cannot be shoehorned into an arbitrary time period. Imagine if we were told that you could get an abortion, but only on the second Tuesday of each month following a Strawberry Moon, or you could possess a firearm, but only for a 10-day period once a year following the first frost. We wouldn’t stand for that. Rights are, of course, subject to reasonable time, place and manner restrictions. The operative word there is “reasonable” — a fixed 10-day period that cannot be adjusted would seem to fail that test.
Finally, the “weight of authority” reasoning only goes so far. Your mom told you that. Just because everyone else in the neighborhood is riding their bikes down a 30-degree slope at the gravel pit will probably not persuade your mom and dad to let you take the plunge (well, at least not your mom). The weight of authority is only persuasive if the authority has weight. And, here, it doesn’t. Janus is scarcely a year old. Higher courts have not yet plumbed its meaning. We should let them do their work before we draw any sweeping conclusions.
But let’s assume the atate is wrong on the law. The practical aspects of Janus are so much more compelling. Public employee unions are of recent vintage. President Franklin Roosevelt himself expressed doubts about their efficacy. Collective bargaining assumes arms-length negotiations which are largely impossible in the context of government relations. Worse, we face corruption’s stench. Incumbents have signed sweetheart deals to secure union support and contributions, to the public’s detriment.
However, unions are here to stay, and that is a good thing — it is quite nearly the best of all things. I have represented management and employers my entire professional life, and I will tell you unions level the playing field. Our economy was strongest when private sector unions raised the standard of living in post-war America. We have a consumer economy. Our economy functions best when we put dollars in every person’s pockets. Americans spend. We also have a society teetering dangerously close to the tipping point. Something is wrong when a fraction of society controls so much wealth. Unions champion income equality, jobs, job security, health insurance and retirement benefits. Good unions also promote training and safety.
So, there, I have made the argument for unions, and it’s an easy argument to make. Instead of fighting over when and how union members’ consent is obtained, unions should allocate their time, energy and resources to messaging with the employees they serve. They should run to that fight. They should not quarrel over consent while trying to lock away employees. It betrays an East German mentality. If I were a union member, I would wonder why they were so afraid of losing my support.
Hysterics aside, the attorney general’s opinion and the state’s corresponding lawsuit protect rights and uphold the law, and people should know that. Janus promotes efficiency. Unions fall on a bell curve, like everything else in life. There are good unions. There are bad unions. There are average unions. Janus does not promote or discourage union membership. Neither do the attorney general’s opinion or the state’s lawsuit. Janus simply requires voluntary membership consistent with First Amendment principles. That means all employees (1) must clearly and affirmatively consent before joining and supporting any union, (2) the waiver must be freely given, and (3) the waiver must be shown by clear and compelling evidence. The attorney general’s opinion and the state’s lawsuit simply recognize these same principles.
No union should object. Indeed, unions should welcome Janus. It affords them every reason and opportunity to explain the value of union membership while protecting employees’ rights. Good unions will make that message stick, and strengthen and grow their base.
Gregory S. Fisher is an attorney in private practice in Anchorage. The views expressed here, along with any mistakes, are his own and do not necessarily reflect the views of his firm or his clients.
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