Life Post-Janus: Upcoming SCOTUS cases that could affect your union - - PowerPoint PPT Presentation

Life Post-Janus:

Upcoming SCOTUS cases that could affect your union

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42nd Annual National Labor Management Conference February 14, 2019-February 19, 2019 The Diplomat Beach Resort Hollywood, Florida

Mark Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al.

• No. 1 6 -1 4 6 6, 5 8 5 U.S . _ ( 2 0 1 8 )

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The Road to Janus

How d id we g et h ere?

• Abood v. Detroit Board of Education, 431 U.S. 209 (1977)
• Agency shop arrangement upheld by Court.
• Chicago Teachers’ Union v. Hudson, 475 U.S. 292 (1986)
• Established minimum process requirements for fair share fee collection.
• Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991)
• Considered which union activities are chargeable to agency fee payers.

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• Knox v. SEIU, 567 U.S. 298 (2012)
• Special assessment imposed on non-members for ballot referendum

lobbying campaign requires both a specific notice beyond standard Hudson notice and requires agency fee payers to affirmatively opt in.

• Harris v. Quinn, 573 U.S.__, 134 S. Ct 2618 (2014)
• Court found home health care aides, who were considered employees of

both the state of Illinois and the individuals for whom they provided care, were not true public sector employees and could not be compelled to pay fair share fees. Abood not applicable.

• Friedrichs v. California Teachers Association, 578 U.S.__, 136 S. Ct.

1083 (2016)

• Direct challenge to Abood and agency shop system resulted in a 4-4 decision,

with the conservative justices prepared to overturn Abood.

How d id we g et h ere?

The Road to Janus

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• The Court’s decision was handed down at the end of its term along ideological

lines in a 5-to-4 decision, with Justice Alito writing for the majority.

• Justice Alito: “[F]undamental free speech rights are at stake. Abood was poorly
• reasoned. It has led to practical problems and abuse. It is inconsistent with
• ther First Amendment cases . . . And no reliance interests on the part of public-

sector unions are sufficient to justify the perpetuation of the free speech violation that Abood countenanced for the past 41 years. Abood is therefore

• verruled.”
• The Court ruled unequivocally that the right to free speech includes the right to

refrain from speaking, referring to it as “compelled speech.” Court found requiring non-members to pay agency fees was unconstitutional compelled speech.

• The Court declared: “[N]either an agency fee nor any other payment to the

union may be deducted from a non-member’s wages, nor may any other attempt to collect such payment, unless the employee affirmatively consents to pay.”

• No. 1 6 -1 4 6 6, 5 8 5 U.S . _ ( 2 0 1 8 )

Janus v. AFSCME Council 31 et al. PITTA LLP

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• Majority opinion forecasts the the types of challenges that were filed

in anticipation of Janus and that have since been filed:

• Unions received a “considerable windfall…under Abood for the

past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public- sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.”

• “Designating a union as the employees’ exclusive representative

substantially restricts the rights of individual employees.” This is “itself a significant impingement on associational freedoms that would not be tolerated in other contexts.”

• No. 1 6 -1 4 6 6, 5 8 5 U.S . _ ( 2 0 1 8 )

Janus v. AFSCME Council 31 et al. PITTA LLP

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Post-Janus Litigation

Retroactive refund of agency fees

• Riffey v. Rauner, No. 1:10-CV-02477 (N.D. Ill. 2017)
• Danielson v. Inslee, No. 3:18-cv-05206 (W.D. Wa. 2018)
• Babb v. California Teachers Ass’n, No. 8:18-cv-00994 (C.D. Cal. 2018)
• Pellegrino v. New York State United Teachers et al., No. 2:18-cv-03439 (E.D.

N.Y. 2018)

• Smith v. New Jersey Educ’n Ass’n, No. 1:18-cv-10381 (D. N.J. 2018)
• Diamond v. Pennsylvania State Educ’n Ass’n, No. 3:18- cv-00128 (W.D. Pa.

2018)

• Akers v. Maryland State Educ’n Ass’n, No. 1:18-cv-01797 (D. Md. 2018)
• Lee v. Ohio Educ’n Ass’n et al., No. 1:18-cv-01420 (N.D. Ohio 2018)
• Hoekman et al. v. Education Minnesota et al., No. 0:18- cv-01686 (N. Minn.

2018)

Exclusive representation

• Reisman v. Associated Faculties of Univ. of

Maine, No. 1:18-cv-00307 (D. Me. 2018)

• Crockett v. NEA- 13 Alaska, No. 3:18-cv-00179

(D. Alaska 2018)

• Martin v. California Teachers Ass’n, No. 2:18-

cv-01951 (E.D. Cal. 2018)

• Uradnik v. Marietta Education Ass’n, No.

2:18-cv-00628 (S.D. Ohio 2018)

• Smith v. New Jersey Educ’n Ass’n, No. 1:18-

cv-10381 (D. N.J. 2018).

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• Following the decision in Harris v. Quinn, plaintiffs sought a

refund of agency fees that had been paid by home health aides.

• Harris had determined that Abood was not applicable to the

health aides because they were not true public employees.

• Plaintiffs were seeking class action status for a class of 80,000

and refund of more than $30 million in past agency fees.

• No. 1 :1 0 -CV -0 247 7 ( N.D. Ill. 2 0 1 7 )

Riffey v. Rauner PITTA LLP

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• District and Circuit courts had denied class action status.
• The day after SCOTUS issued its opinion in Janus, it granted
• cert. in this case, vacated the lower court decision, and

remanded to the 7th Circuit for reconsideration in light of Janus.

• On December 6, 2018, 3 judge panel of the 7th Circuit affirmed

its prior decision denying class action status, reasoning that each class member would have to prove that he or she had

• bjected to paying agency fees.
• A petition has been filed for the 7th Circuit to rehear the case

en banc.

• No. 1 :1 0 -CV -0 247 7 ( N.D. Ill. 2 0 1 7 )

Riffey v. Rauner PITTA LLP

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• Washington State employees sought retroactive refunds of

agency fees.

• Case brought pursuant to 42 U.S.C §1983 which allows

monetary recovery for constitutional violations “under color

• f” law.
• A “good faith defense” can shield §1983 liability. Here,

agency fees were collected under a valid state law and Abood was still good law, so claims were dismissed.

• Plaintiffs indicated that they would appeal.

1 8 -c v-0 5 2 06 -RJB ( W.D. W ash . Nov. 2 8 , 2 0 1 8 )

Danielson v. AFSCME Council 28, AFl-CIO

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• Washington State employees who were union members

challenged maintenance of dues deduction authorization provision.

• Provision provided for 10 day opt out period to withdraw from

payment of dues.

• If bargaining unit member did not opt-out during the specified

time, even if he or she withdrew from union membership, dues would continue to be deducted. Here, plaintiffs, following Janus, withdrew from union membership but did not opt-out during the window period.

1 8 -c v-0 5 6 20 -RJB ( W.D. W ash . F eb . 1 5 , 2 0 1 9

Belgau v. Inslee et al.

11

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Effective immediately, I hereby voluntarily authorize and direct my Employer to deduct from my pay each period, the amount of dues as set in accordance with the [Union] Constitution and By-Laws and authorize my Employer to remit such amount semi-monthly to the Union (currently 1.5% of my salary per pay period not to exceed the maximum). This voluntary authorization and assignment shall be irrevocable for a period of one year from the date of execution or until the termination date of the collective bargaining agreement (if there is one) between the Employer and the Union, whichever occurs sooner, and for year to year thereafter unless I give the Employer and the Union written notice of revocation not less than ten (10) days and not more than twenty (20) days before the end of any yearly period, regardless of whether I am or remain a member of the Union, unless I am no longer in active pay status in a [Union] bargaining unit; provided however, if the applicable collective-bargaining agreement specifies a longer or different revocation period, then only that period shall apply. This card supersedes any prior check-off authorization card I signed. I recognize that my authorization of dues deductions, and the continuation of such authorization from one year to the next, is voluntary and not a condition of my employment.

1 8 -c v-0 5 6 20 -RJB ( W.D. W ash . F eb . 1 5 , 2 0 1 9

Belgau v. Inslee et al. PITTA LLP

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• Court refused to expand its interpretation of Janus to all bargaining unit
• members. Here, plaintiffs were union members, not agency fee payers.
• When plaintiffs authorized the deductions in the membership

agreements, they did so voluntarily and not as a condition of employment.

• Court flatly rejected the argument that plaintiffs could not affirmatively

waive their First Amendment rights as required by Janus because they did not know of those rights yet.

• Court ruled that “First Amendment does not preclude the enforcement of

‘legal obligations’ that are bargained-for and ‘self-imposed’ under state contract law.” 1 8 -c v-0 5 6 20 -RJB ( W.D. W ash . F eb . 1 5 , 2 0 1 9

Belgau v. Inslee et al. PITTA LLP

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• Professor at Minnesota public university brought challenge

against exclusive representation of IFO and sought preliminary injunction to enjoin IFO from speaking on her behalf as the exclusive representative.

• Plaintiff is not a member of IFO but claims that state law

requiring exclusive representation violates her rights to freedom of association and freedom of speech.

• District court rejected plaintiff’s claim, relying on prior

Supreme Court ruling in Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984).

2 0 1 8 W L 4 6 5 4 7 51 ( D. M in n . S ep t. 2 7 , 2 0 1 8 )

Uradnik v. Inter Faculty Organization

14

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• On appeal to 8th Circuit, Plaintiff asked the court to affirm

the lower court opinion so that an appeal could be taken to the Supreme Court.

• Petition for cert. was filed on December 4, 2018.
• IFO has until March 27, 2019 to file its response to the

petition.

2 0 1 8 W L 4 6 5 4 7 51 ( D. M in n . S ep t. 2 7 , 2 0 1 8 )

Uradnik v. Inter Faculty Organization

15

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Questions and Comments?

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Thank You.

Vito R. Pitta, Esq. 212 652 3881 vrpitta@pittalaw.com www.pittalaw.com

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