9th Circuit says Janus doesn’t make exclusive bargaining unconstitutional.

The 9th U.S. Circuit Court of Appeals rejected the argument that a U.S. Supreme Court decision outlawing mandatory union fees charged to nonmembers also renders exclusive bargaining provisions unconstitutional.

Last year in Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), the Supreme Court ruled that involuntary fees charged to public sector union nonmembers violate their First Amendment rights. Coupled with an earlier decision reaching the same conclusion for partial state employees, the high court eliminated the practice legalized in Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

In the 9th Circuit case decided Tuesday, two former members of Service Employees International Union Local 925 alleged that the union's status as their exclusive bargainer violates their First Amendment rights. The union won in district court on summary judgment, at which point one plaintiff dropped out. The remaining plaintiff appealed. Miller v. Inslee, 2019 DJDAR 1487.

That plaintiff argued that Janus, particularly a passage calling mandatory exclusive representation an impingement on personal freedom, overrules a previous case, Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), that held the practice is legal.

The 9th Circuit panel disagreed, and said Janus is not the proper case to apply anyway.

"The same passage [the plaintiff] identifies as evidence that Knight did not survive Janus goes on to expressly affirm the propriety of mandatory union representation, which is consistent with Knight," wrote Judge Morgan B. Christen for the unanimous panel. "Janus is also clear that the degree of First Amendment infringement inherent in mandatory union representation is tolerated in the context of public sector labor schemes."

Knight had upheld exclusive representation and cabined Abood by concluding the collection of dues lay at the heart of the infringement, Christen wrote. Thus Janus, which overruled Abood, only speaks to the constitutionality of those fees.

"The Supreme Court expressly distinguished between compelling non-union members to pay agency fees ... and mandating that any union representation be exclusive, which the court suggested is a tolerated impingement of non-union members' First Amendment rights," she wrote.

Judges Susan P. Graber and M. Margaret McKeown concurred.

Miller v. Inslee is one of five relatively recent challenges to exclusive representation, and the second to employ Janus. None have been successful thus far, though one other is slated for briefing in the Supreme Court. Miller and that case, Bierman v. Dayton, have both attempted to incorporate Janus.

"The 9th Circuit decision agrees with the decision of four other circuits that have considered this issue. They all decided it was already correctly decided in the Knight case," said Scott A. Kronland of Altshuler Berzon LLP, who argued for the union. "Janus dealt with mandatory fees. The Supreme Court expressly said that except for ending mandatory fees, states did not have to change their collective bargaining systems."

Milton L. Chappell of National Right to Work Legal Foundation Inc., who argued for the plaintiffs, said he was disappointed by the decision, and that exclusive representation is "high infringement on the First Amendment."

When asked if the foundation plans to pursue this case before the Supreme Court, Chappell said, "We're still reviewing it and all our options are on the table at the moment."

SEIU Local 925 President Karen Hart said in an email: "The court made the right decision. We will continue to represent all child care providers equally at the bargaining table."

Colin P. Calvert of Fisher & Phillips LLP, who represents employers, called the case "interesting" and said the 9th Circuit reached the right decision. He noted that the court went out of its way to say not only was Knight the proper case to apply and still good law, but that it would reach the same conclusion under Janus.

"When I read this ruling, to me it appears the court is saying that first, this is a Knight analysis because it's an association issue. Second it's saying Janus is really a decision that has to do with dues and fees supporting a union rather than a union having the exclusive right to bargain on your behalf," he said.

"It appears the court is trying to make it crystal clear how these cases fit together. Based on my read of Janus, it does seem the distinction they're drawing is a proper one," he continued.

Arguments over the permissibility of exclusive representation is one salvo among a slew of challenges to unions that immediately followed the Janus decision. Plaintiffs nationwide also sued in its wake, seeking to recoup agency fees charged over the years.

Eli Naduris-Weissman of Rothner, Segall & Greenstone, who represents unions but was not involved in this case, said the 9th Circuit made the right call and noted that this lawsuit has a backer in common with similar ones.

"In rejecting the latest gambit of the anti-union National Right to Work Foundation, the 9th Circuit followed the lead of every court that has looked at the issue, including the Supreme Court, and concluded that exclusive representation in the public sector is constitutional," he said.

"This was the same conclusion reached by the 8th Circuit, which no one would accuse of being liberal, last August," he added.

Calvert said the more likely expansion of Janus would be attempts to apply it to private sector unions.