IN POST JANUS WORLD WILL UNIONS HAVE TO SUPPORT NON-MEMBERS?

There is a very interesting piece in Slate Magazine on the future of public sector unions after we more than likely lose the Janus vs AFSCME case.

Does a post Janus union have to represent someone who refuses to join the union? Slate's answer is no and I would concur.

This is a major part of the Slate piece:

The National Labor Relations Board describes non–union members’ “right to fair representation” from unions as follows:

Your union has the duty to represent all employees—whether members of the union or not—fairly, in good faith, and without discrimination. This duty applies to virtually every action that a union may take in dealing with an employer as your representative, including collective bargaining, handling grievances, and operating exclusive hiring halls. For example, a union which represents you cannot refuse to process a grievance because you have criticized union officials or because you are not a member of the union.

As professors Catherine Fisk and Margaux Poueymirou have persuasively argued, though, if the Supreme Court holds that compulsory fair share fees are unconstitutional because they require non–union members to spend money on political causes with which they disagree, then compelling unions to expend their own scarce resources advocating for the benefit of nonmembers would similarly be unconstitutional “on the court’s own analysis.”

But the violation of unions’ First Amendment rights is more severe than merely compelling them to spend money. In addition to depleting unions’ resources, compelling unions to advocate on behalf of nonmembers who frequently oppose their very existence represents a severe violation of unions’ First Amendment rights to determine their membership and the terms of their association.

The Supreme Court has held over and over again that governmental interference with a private group’s membership requirements “may impair the ability of the original members to express only those views that brought them together.” Given this reality, the court has long recognized that “[f]reedom of association therefore plainly presupposes a freedom not to associate.” The Supreme Court expounded on this principle in a landmark 2000 ruling, which held that the Boy Scouts of America had the right to expel a gay member, lest the organization lose its “ability to advocate public or private viewpoints.”

In other contexts, allowing the government to force organizations to advocate on behalf of people who oppose them would lead to results that most would properly regard as absurd. For instance, what would be left of the right to associate if the government could compel Republicans to allow Democrats to vote in their nominating conventions? Or force the Jewish Anti-Defamation League to promote the views of Nazis? Can civil rights advocates be compelled to permit the KKK to march with their members at parades, or vice versa? Simply put: Individuals are either free to define the terms of their association, or they are not.