The post-Janus world, first legal response

Abood did not abide.1

As I explained elsewhere,2 teachers unions and union activism will survive the Janus decision that ends mandatory representation fees for public employees who are not members of unions that represent their bargaining unit.3 When I was thinking about the post-Janus world, I thought primarily of the broader strategies of unions that could no longer function on semi-autopilot with agency fees, at least in terms of their relationships with bargaining units.4

But less than a week later, we are also seeing the potential legal response by teachers unions, in Florida.

Florida already was a so-called “right-to-work” state, where public employees have a constitutional right to union representation, but where non-members were never charged fees for representation. This year, Florida legislative leaders decided to target teachers unions and passed a gigantic education bill that had a unique anti-union clause in it: teachers unions and only teachers unions had to demonstrate at contract renewal that a majority of their bargaining units were dues-paying members.

This morning, the lawsuit I’d been expecting was filed, by Meyer, Brooks, Demma, and Blohm, a Tallahassee law firm that has represented unions for decades. The complaint had three arguments that I had been expecting, and that are presented clearly:

  • Targeting the teachers unions violates the state constitutional clause on equal protection – police, firefighter, and other public-employee unions do not have the same requirement. This is the main substantive argument I expected.
  • Targeting any public-employee union violates the state constitutional clause that workers in general have unionization rights, and adds a requirement that no private-employee union has. This is a broader claim about unionization rights. It’s a stretch, but understandable.
  • Because the teachers union decertification clause affects one part of statute (Florida Statutes 447, on collective bargaining) while the rest of it is about the education code, the law violates the constitution’s requirement that each piece of legislation is about one topic only. This is a procedural argument about the sausage-making that went into this particular bill.

And then there was a surprise argument: the bill violated the rights of non-members:

Before passage of the Recertification Requirement, the Individual Non-Member
Plaintiffs were not required to take any action to ensure continued union representation in the absence of a decertification petition filed by fellow employees. Under the Recertification Requirement, the Individual Non-Member Plaintiffs are
compelled and coerced to join the union, and to encourage fellow employees to do so, to ensure that continued union representation is not put at risk where their fellow employees have not sought to challenge continued union representation. The Recertification Requirement thereby diminishes, burdens and imposes a
charge upon the free exercise, use and enjoyment of the right of the Individual Non-Member Plaintiffs to be represented for collective bargaining, in violation of Article I, Section 6, Florida Constitution. (paragraphs 40-42)

To ensure legal standing, the unions and their lawyers found several teachers who are not members primarily because of their household finances, but who like being represented by a union at the bargaining table.

This is an inventive argument: if a non-member cannot have their rights abridged vis-a-vis members (which is the way the Florida’ constitution is worded), then attacking a union is attacking the rights of non-members as well as the rights of members.

Shot across the bow, duly noted.

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Notes

  1. Abood was the 1970s Supreme Court ruling that mandatory representation fees do not violate the rights of public-employees who are represented by unions but not members. Yes, I’m willing to go this far for a bad pun. []
  2. Note for 7/2: I have some edits I need to make to that piece, primarily adding sources that I didn’t have the chance to add last week. []
  3. Yes, that’s a mouthful. Every part of that is required. []
  4. This is not necessarily what many unions did, but it is a temptation, to treat the relationship as transactional. []