Maddy Joseph is a student at Harvard Law School.
Several leading professors of labor and employment law have filed an amicus brief in support of the respondents in Janus. The brief, authored by Samuel Estreicher, was filed by Cynthia Estlund, Estreicher, Julius Getman, William Gould, Michael Harper, and Theodore St. Antoine.
The brief makes a functional argument for public sector collective bargaining. Employees expect, and the government employer generally favors, horizontal uniformity–that is, similar terms and conditions for similarly situated employees. Because of this, bargaining with individual employees is impractical, as any terms negotiated with an employee would likely have to be extended to other employees like him. The choice for a state employer, then, is between imposing terms unilaterally and bargaining collectively with employees.
What states that authorize collective bargaining, including Illinois, have realized, the brief contends, is that meeting employees’ expectations for influence and reception to grievances requires some form of independent employee organization. At first, some states, including Illinois, set up voluntary and non-exclusive employee organizations to “meet and confer” with management. But, according to the brief, employees remained dissatisfied and management worried about having to negotiate with multiple groups of employees.
As the brief tells it, many states, including Illinois, soon abandoned meet and confer for collective bargaining, a system that the states realized could “provid[e] an independent employee voice likely to reveal employee preferences and concerns that management might not be able to elicit on its own and . . . ensure that those preferences and concerns are effectively heard during bargaining and in the grievance procedure.” To maintain the requisite independence, the brief argues, the representative must be employee funded.
Finally, the brief argues that a collective bargaining system like this does not pose First Amendment problems but rather furthers First Amendment values. For one, exclusive representation funded by employees–coupled with the safeguards of Abood and the union’s statutory duty of representation–supports a meaningful employee voice in the workplace, a goal consistent with free speech values. And agency fees, the brief argues, should be viewed not as unconstitutional compelled speech but rather like a tax, an assessment for a program that provides collective benefits for affected employees. Assessments like those to pay for collective programs do not violate the First Amendment under existing case law, the brief argues, even where the assessments are levied on objectors.
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October 8
In today’s news and commentary, the Trump administration threatens no back pay for furloughed federal workers; the Second Circuit denies a request from the NFL for an en banc review in the Brian Flores case; and Governor Gavin Newsom signs an agreement to create a pathway for unionization for Uber and Lyft drivers.
October 7
The Supreme Court kicks off its latest term, granting and declining certiorari in several labor-related cases.
October 6
EEOC regains quorum; Second Circuit issues opinion on DEI causing hostile work environment.
October 5
In today’s news and commentary, HELP committee schedules a vote on Trump’s NLRB nominees, the 5th Circuit rejects Amazon’s request for en banc review, and TV production workers win their first union contract. After a nomination hearing on Wednesday, the Health, Education, Labor and Pensions Committee scheduled a committee vote on President Trump’s NLRB nominees […]
October 3
California legislation empowers state labor board; ChatGPT used in hostile workplace case; more lawsuits challenge ICE arrests
October 2
AFGE and AFSCME sue in response to the threat of mass firings; another preliminary injunction preventing Trump from stripping some federal workers of collective bargaining rights; and challenges to state laws banning captive audience meetings.