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.