After ‘Janus’: Anti-Union Forces Target Representation Structure in New Suit

A case filed mere weeks after Janus in federal district court in Minnesota shows that anti-labor forces are already marshaling to further decimate public sector unions.

[Photo: Union activists rally against the Supreme Court's ruling in the Janus v. AFSCME case]
Importantly, the Janus case didn’t rule on the issue of exclusive representation, leaving the ability of public sector unions to negotiate on behalf of all employees, regardless of union membership, intact. Drew Angerer/Getty Images

Earlier this summer, the U.S. Supreme Court decided Janus v. American Federation of State, County, and Municipal Employees, Council 31, holding that public sector unions violate the First Amendment when they charge “fair share” agency fees to non-union members, even though unions negotiate on behalf of all employees. In practice, what Janus meant was that public sector unions would be starved of money, as employees will affirmatively have to opt in to pay fees and be a member, rather than opting out.

The decision was the culmination of a decade-long crusade led by Justice Samuel Alito to undermine public sector unions. Now, in its wake, a case filed mere weeks after Janus in federal district court in Minnesota shows that anti-labor forces are already marshaling to further decimate public sector unions. Ultimately, these forces seem to be planning to argue against the existence of unions altogether, and the Janus decision suggests the conservative majority of the Supreme Court might welcome such a case.

In July, Kathleen Uradnik, a professor at St. Cloud State University in Minnesota, sued both the school and the union, the Inter Faculty Association, that exclusively represents faculty employees at all schools in Minnesota’s state college and university network. As the exclusive representative, the union has the sole right to negotiate with the university over employee wages, benefits, and working conditions. Exclusive representation allows employees to band together to increase their negotiating ability with their employer.

Importantly, the Janus case didn’t rule on the issue of exclusive representation, leaving the ability of public sector unions to negotiate on behalf of all employees, regardless of union membership, intact. However, exclusive representation is exactly what Uradnik takes issue with, and is suing to overturn. In other words, Uradnik’s lawsuit is the logical next step in the “right-to-work” movement’s coordinated effort to quash unions.

Uradnik is represented by an Ohio anti-union think tank, the Buckeye Institute. Almost immediately after the Supreme Court issued its decision in Janus, the Buckeye Institute swung into action at the state level. On behalf of anti-union professors in Maine and Minnesota, the institute sent demand letters seeking to force faculty unions in those states to immediately allow people to opt out, rather than waiting for an opt-out period. In Minnesota, the Inter Faculty Association at Moorhead State University promptly complied, allowing Professor Boyd Bradbury to opt out of paying fair share fees—which is functionally all that the Janus decision requires.

Though the Janus majority opinion, authored by Alito, detailed many ways in which it found unions distasteful, ultimately its holding was narrow:

[P]ublic-sector unions may no longer extract agency fees from nonconsenting employees [….] This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.

Presumably, were Uradnik and the Buckeye Institute only seeking to ensure that Uradnik did not have to pay any agency fees and could opt out immediately, they could have sent a demand letter to St. Cloud State’s local Inter Faculty Association. Uradnik is dealing with both the same public sector union and the same university network as Professor Bradbury was at Moorhead State. But merely being relieved of the duty to pay a fair share fee has never been what these anti-union efforts are really about, and that’s very obvious from Uradnik’s lawsuit.

Uradnik’s lawsuit doesn’t allege that she tried to opt out of paying fees, post-Janus, and was prevented from doing so. Instead, the lawsuit discusses Minnesota’s exclusive representation structure and explains that the Inter Faculty Association has the right to meet and confer on a wide number of employment issues, including committee appointments. Uradnik also takes issue with the fact that, pursuant to the union contract and principles of exclusive representation, union faculty members are the only professors permitted to serve on search committees that select deans of the university, who ultimately help supervise professors.

Uradnik also argues that the union controls access to other committee appointments and that being unable to serve on committees presents a barrier to advancement and tenure. Uradnik, however, is already tenured and doesn’t allege that she has been unable to advance her career—only that she has been unable to serve on some committees she’s wished to. Instead, her complaint centers around the fact that she wants to meet and confer directly with her employer, without the union as the exclusive representative.

The problem here for Uradnik is that there is no case law that says exclusive representation violates any law or constitutional principle. Uradnik’s complaint tries to get around that by quoting portions of Justice Alito’s opinion in Janus while failing to make clear that those portions do not form part of the holding in the case.

For example, Uradnik cites language from Janus noting that “designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees” and makes that the basis for her claim that exclusive representation violates the First Amendment by forcing her to affiliate with the union’s advocacy. However, the language from Janus she cites is merely observational: Exclusive representation does indeed bar individual employees from negotiating directly with their employer. Under Janus, however, that’s neither bad nor good—it is just a flat statement of fact unlinked to any allegation of a violation of the First Amendment.

Uradnik also takes umbrage with the notion that the union has, under the contract and the duty of exclusive representation, the ability to participate in grievance processes when an employee has been disciplined or has raised an issue about their working conditions. She quotes language in Janus that “when a union controls the grievance process, it may, as a practical matter, effectively subordinate the interests of an individual employee to the collective interests of all employees in the bargaining unit.” Again, in the context of Janus, that’s simply a statement, not a holding. Indeed, this discussion of the grievance process appears in Janus only to underscore that unions may properly desire to represent non-members, even though those non-members will no longer pay any fees, because the resolution of one employee’s grievance may affect that of others.

One can hardly blame Uradnik for attempting to stretch the reach of Janus, given that the conservative majority on the Court has proven itself to be very hostile to the rights of workers, both within and outside of the union context. And Justice Alito, who ignored decades of precedent to get to his ruling in Janus, has almost explicitly invited anti-union litigants to bring another public sector union challenge to the Supreme Court.

At root, Uradnik is arguing that she’s forced to affiliate with the union, thereby having their speech and conduct attributed to her, even though she is free to completely remove herself from supporting the union or standing with the union in any fashion. In other words, the focus of her case is that the simple existence of the union as the entity that negotiates with the university violates her First Amendment rights. That’s an almost impossible leap to make, but it’s also a leap that some members of the Supreme Court, Justice Alito chief among them, would likely welcome.

Anti-union forces like the Buckeye Institute clearly weren’t satisfied by the decision in Janus. They won’t rest until they’ve either gutted or entirely eliminated public sector unions. And it’s no wonder. The rate of membership in public unions is more than five times that of private unions, and union wages are higher across the board than non-union wages.

Cases like Uradnik’s aren’t about free speech. They’re not really even about saving workers from paying agency fees. Turning states into low-wage “right to work” states requires the dismantling of public sector unions as much as, if not more than, the eradication of private sector ones. This is especially true when voters reject right-to-work laws at the ballot box, as they just did in Missouri. Anti-union advocates know that the Supreme Court can be weaponized to break organized labor, and lawsuits like Uradnik’s are, regrettably, an excellent vehicle to accomplish that task.