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Janus, Free Speech, And A Sharp Turn For The Worse

Just when you thought it couldn’t, really, get any worse, the US has taken another lurch to the right.

There’s been some talk this week on this side of the “pond” about the political balance of the Supreme Court tilting to the right after the announcement that Justice Kennedy, a long-standing and (relatively) liberal member of the nine-person panel, was retiring – the President has the power of appointment (subject to Congressional approval).

But, hey, this week shows just how finely balanced things are in the ultimate arbiter of the US constitution anyway – by a majority of 5 to 4, Trump’s ban on visitors from predominantly Muslim countries was upheld as (a) not being an act of racial discrimination and (b) not being a breach of his powers.

Now hard on the heels of the “travel ban’ ruling comes the Janus judgement.  Put bluntly, this undoes the foundation of collective bargaining and worker voice in the US public sector.

Here’s how:  Like the UK, there is a statutory recognition process.  Our US counterparts have to jump more and higher hurdles than us, but, arguably, the ultimate prize is greater.  If you secure recognition in the US, it covers everyone in the bargaining unit in question.

Just like here, huh? Not quite.  When a UK union secures recognition, then it does indeed negotiate for everyone in that unit, whether or not they are actually members. The constant and justifiable claim is that non-members are free-riding on the benefits secured by the subscription-paying members.

The US system fixes this by adopting an “everyone pays” approach.  So if you’re in a union organised workplace,  even if you are not a member, the union will receive payment from or in some case for you in recognition of the fact that they are negotiating on your behalf too.

The Janus case (or Janus v the American Federation of State, County and Municipal Employees) overturns a standard set over 40 years ago (in Abood v Detroit Board of Education) and in effect says that rights under the 1st Amendment of the US Constitution – paraphrased as the right to free speech – trump everything else. (The pun is deliberate).

The scales of justice are weighed in a very strange way when the interests of so many – “working people and their families,….21 states, the District of Columbia, leaders of major cities, towns and school districts” -are set aside, to quote Alice O’Brien.

What the precise impact and the response to the ruling will be is impossible to predict, but this is not good news. In fact it is particularly bad news.

Immediately we can see that collective bargaining could become a lot less collective. If people can duck out, will they still get the benefits AFSCME and others negotiate? That would be a charter for free-loaders.

But if severing your contributions also means you lose your entitlement to those benefits, then it is a harbinger of division, with employers no doubt encouraging opt-outs to undermine the collective voice.

And the collective voice will also suffer by a financial constraint, as opted-out employees no longer generate payments to the recognised union.

But as O’Brien also says – this is politics, not law. And being political, the contradiction is overwhelming.

First amendment rights rule, ok? But there is no freedom of expression if the self same workers affected by this ruling want to speak out about issues and problems at work, they tend to be disciplined or sacked. And courts have historically tended to back the employer.

Supreme Court decisions are usually the final word on any given legal issue. And that above everything else is why Janus is a headache that is going to be with us for some considerable time.

Alice O’Brien’s excellent legal summary is at: http://www.scotusblog.com/2018/06/symposium-janus-radical-rewrite-of-the-first-amendment/

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