The Roberts Court and Compulsory Collective Bargaining: Reading the Tea Leaves after Janus

• Author: Thomas J. Freeman, Aaron McKain, Amy J. Parrish, and Christopher Chochon
• Position: Professor of Business Law at Creighton University's Heider College of Business, Director of the Creighton Business Law Research Forum, Senior Researcher and Policy Analyst at the Institute for Digital Humanity, and a practicing attorney/Associate Professor of Digital Media and Director of English and Communication Arts at North Central ...
• Pages: 187-219

The Roberts Court and Compulsory Collective

Bargaining: Reading the Tea Leaves after Janus

THOMAS J. FREEMAN*, AARON MCKAIN**, AMY J. PARRISH***, AND

CHRISTOPHER CHOCHON****

ABSTRACT

The Roberts Court has become strident in its defense of the First Amendment.

If litigants can manage to frame an issue as a government infringement on their

right(s) to speech, expression, or free exercise of religion, they are likely to suc-

ceed in attracting the Court’s scrutiny. As most first-year law students can tell

you, the determination of the level of scrutiny the Court will place on the gov-

ernment will often determine whether the regulation in question will be permit-

ted to stand. With that in mind, the way Justice Alito framed the issue of

collective bargaining in his majority opinion in Janus bears watching for what

it could mean for the future of compulsory collective bargaining.

TABLE OF CONTENTS

I. BACKGROUND AND HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

II. NEGOTIATION IS SPEECH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

III. POST-JANUS DECISIONS SHOW AN EVOLUTION IN COMPELLED

SPEECH DOCTRINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192

A. Brush & Nib Studio, LC v. City of Phoenix. . . . . . . . . . . . . . . 192

B. Telescope Media Group v. Lucero. . . . . . . . . . . . . . . . . . . . . 195

C. Chelsey Nelson Photography LLC v. Louisville/Jefferson

County Metropolitan Government . . . . . . . . . . . . . . . . . . . . . 196

D. 303 Creative LLC v. Elenis . . . . . . . . . . . . . . . . . . . . . . . . . . 197

* Thomas J. Freeman is a Professor of Business Law at Creighton University’s Heider College of

Business, Director of the Creighton Business Law Research Forum, Senior Researcher and Policy

Analyst at the Institute for Digital Humanity, and a practicing attorney.

** Dr. Aaron McKain is an Associate Professor of Digital Media and Director of English and

Communication Arts at North Central University.

*** Amy J. Parrish is a Professor of Business Law at Creighton University’s Heider College of

Business.

**** Christopher Chochon is a recent graduate of the Creighton University School of Law and is

currently enrolled in Northwestern Pritzker School of Law’s Tax LLM program. © 2023, Thomas J.

Freeman, Aaron McKain, Amy J. Parrish, and Christopher Chochon.

187

E. State v. Arlene’s Flowers, Inc . . . . . . . . . . . . . . . . . . . . . . . . 199

IV. FOUR PRINCIPLES OF NEGOTIATION . . . . . . . . . . . . . . . . . . . . . . . . 201

A. Principle One: Negotiation is Protected Expression . . . . . . . 201

B. Principle Two: Compulsory Collective Bargaining Violates

the Right to Freedom of Association . . . . . . . . . . . . . . . . . . . 205

C. Principle Three: Mandatory Collective Bargaining Creates a

Principal-Agent Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . 206

D. Principle Four: Unions Are Less Attractive Options for

Workers than They Once Were . . . . . . . . . . . . . . . . . . . . . . . 208

1. Individual Interests of Employees in a Workplace Are,

By Definition, Irreconcilable . . . . . . . . . . . . . . . . . . . . . 208

2. The Changing Nature of the Workforce Makes Union

Membership Less Attractive. . . . . . . . . . . . . . . . . . . . . . 210

3. Grievance Procedures Are Bureaucratic and Slow

Moving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

V. JANUS IS ALREADY AFFECTING ORGANIZATIONS THAT COMPEL

MEMBERSHIP OR PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . 213

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

I. BACKGROUND AND HISTORY

Mark Janus was a state employee whose collective bargaining unit was repre-

sented by a public-sector union.

1

Mr. Janus refused to join the Union because he

opposes many of its positions, including those taken in collective bargaining.

2

Under the Illinois law he challenged, if a majority of the employees in a bargain-

ing unit voted to be represented by a union, that union was designated as the

exclusive representative of all the employees, even those who did not join.

3

Only

the union could engage in collective bargaining; individual employees could not

be represented by another agent or negotiate directly with their employer.

4

Employees who did not join the union were still dependent on the union to negoti-

ate the terms of their employment and were required to pay an “agency fee” to

the union to cover their share of that service.

5

1. Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S.Ct. 2448, 2456 (2018).

2. Id.

3. Id. at 2455.

4. Id. at 2456.

5. Id.

188 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:187

The agency fees were supposed to cover union expenditures attributable to

those activities related to the union’s collective-bargaining activities but could

not cover the union’s political and ideological projects.

6

The union set the agency

fee annually and then sent nonmembers a notice explaining the basis for the fee

and the breakdown of expenditures.

7

In Janus’s case, the agency fees were 78%

of full dues.

8

Janus challenged the constitutionality of the agency fees as “coerced political

speech” under the First Amendment (applicable to the states through the

Fourteenth Amendment).

9

Janus rejected many of the policy positions for which

the union advocated.

10

Janus believed the union’s bargaining did not appreciate

the State of Illinois’ fiscal crisis and did not reflect Janus’s best interests or the

interests of Illinois citizens.

11

The Court first analyzed the justifications previously given in Abood.

12

The

two justifications in Abood for agency fees were labor peace and avoiding the

risk of free riders.

13

First, the Court found that the labor peace argument that had

provided the foundation for the Abood holding had proven to be unfounded over

time and was without merit.

14

Second, avoiding the risk of free riders was not

a compelling state interest as is required to justify a breach of the First

Amendment.

15

In overruling the Abood decision, the Court highlighted the significance of

compelled speech versus restriction of speech in violation of the First

Amendment. The Court stated, in cases of compelled speech “[i]ndividuals are

coerced into betraying their convictions. Forcing free and independent individu-

als to endorse ideas they find objectionable is always demeaning . . . [and] a law

commanding ‘involuntary affirmation’ of objected-to beliefs would require ‘even

more immediate and urgent grounds than a law demanding silence.’”

16

In the alternative, the union argued that the agency fees were constitutional

based on Garcetti-Pickering. Under that framework, the union argued: (1) union

speech in collective bargaining should be treated as speech pursuant to an

employee’s official duties; (2) the fees were only a matter of private concern; and

(3) the government’s interests in promoting the efficiency of the public service

are sufficient to outweigh the plaintiff’s free speech interests.

17

6. Janus, 138 S. Ct. at 2456.

7. Id.

8. Id.

9. Id. at 2462.

10. Id.

11. Id. at 2461.

12. See Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977).

13. Janus, 138 S. Ct. at 2457 (citing Abood, 431 U.S. at 224).

14. Id.

15. Id.

16. Id. at 2464.

17. Id. at 2472, 2474, 2477.

2023] READING THE TEA LEAVES AFTER JANUS 189