The petitioner’s opening brief in Janus v. AFSCME Council 31 contains many eyebrow-raising assertions, but one of the most audacious claims is that “enforcement of a collective bargaining agreement, such as through the grievance process, is just as political an act as bargaining for that deal.” This one sweeping statement is practically all that Janus’s lawyers had to say regarding an entire body of case law based on the Court’s observation that “government offices could not function if every employment decision became a constitutional matter.”
The theory of Janus’s case is that collective bargaining in the public sector always involves matters of public concern. To support this claim, the brief points to the cost of public employees’ wages and benefits. But, one problem Janus faces is that his union only negotiates a new collective bargaining agreement every three years. So, even if he convinces the Court that charging him for the costs associated with negotiating a collective bargaining agreement raises a serious First Amendment issue (and there are plenty of flaws in that argument), it doesn’t necessarily follow that charging him for the costs associated with enforcing that agreement presents a problem under the First Amendment. Is Janus really claiming that every union grievance over a three-day suspension raises an issue of public concern? A quick look through the collective bargaining agreement covering Janus’s employment demonstrates the breadth of Janus’s claim. For instance, the agreement provides that an employee who temporarily covers a position in a higher classification should be paid the higher wage in effect for that classification. While advocates for workers might want the Court to hold that a grievance over the failure to properly pay the higher wage does involve a matter of public concern, the Court has consistently held that similar complaints by public employees are not matters of public concern.
While not admitting this in his brief, Janus is effectively asking the Court to overturn at least three decisions in addition to Abood v. Detroit Board of Education. The first of these three cases is Connick v. Myers, which was decided in 1983. There, Sheila Myers, an assistant district attorney, was fired for circulating a questionnaire to fifteen other assistant district attorneys soliciting their views on office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work on political campaigns. The Court held that only the question regarding being pressured to work on political campaigns was a matter of public concern. It dismissed the remaining questions as “an employee grievance concerning internal office policy,” and as a result the Court held that there was no First Amendment violation when Myers was fired.
The next case the Court must overturn to find that all public employee grievances involve matters of public concern is Garcetti v. Ceballos, decided in 2006. This case was brought by Richard Ceballos, a deputy district attorney, who claimed he was retaliated against after he sent a memo to his supervisors questioning the accuracy of an affidavit the district attorney’s office had filed in a pending criminal case. The Court held that Ceballos’s memo was not protected by the First Amendment because he was simply performing his job duties. Thus, even though the memo addressed potential misconduct in the district attorney’s office, which ought to be of interest to the public, the Court held that Ceballos’s grievance alleging that he was retaliated against for writing the memo was not also a matter of public concern. In reaching its decision, the Court majority explained that it did not want to “constitutionalize the employee grievance.”
The third case Janus must overcome is Borough of Duryea v. Guarnieri, decided in 2011. Charles Guarnieri was a police chief. He was fired, and he filed a union grievance challenging the termination. After an arbitrator ordered the town to reinstate him, Guarnieri alleged that the town took several measures to retaliate against him. Guarnieri sued the town, alleging that his union grievance was protected by the First Amendment, and the town had illegally retaliated against him for exercising his First Amendment rights. While the Court remanded the case for the lower court to determine whether Guarnieri’s grievance involved a matter of public concern, it noted that “a complaint about a change in the employee’s own duties does not relate to a matter of public concern.” In addition, the Court observed that “[e]mployees may file grievances on a variety of employment matters, including working conditions, pay, discipline, promotions, leave, vacations, and terminations.” The Court explained that if every employee grievance were treated as an exercise of First Amendment rights triggering constitutional protection, then judges and juries would be required to scrutinize the government’s response to every grievance and its justification for that response.
Janus’s bold claim that it infringes on his First Amendment rights to require him to pay his fair share of the cost of enforcing the collective bargaining agreement covering his employment cannot be squared with Connick, Garcetti, or Borough of Duryea. If requiring Janus to share in the costs of the Union’s grievance handling violates his First Amendment rights, it can only be because every union grievance is a political or ideological statement. And if Janus has a constitutional right to be free from retaliation because he is refusing to speak (or more accurately refusing to pay for this speech), then his co-workers would have an equal constitutional right against retaliation for choosing to engage in that very speech. In other words, if Janus wins his case, the result will be constitutionalizing the employee grievance.
While Janus’s brief treats this question as though it is barely worth mentioning, it is far from trivial. During the years between contract negotiations, most unions spend more on contract enforcement than on any other budget category. If, in fact, most of Janus’s fair share fees are going toward routine questions of contract enforcement, it’s hard to see how the Justices who decided Garcetti and Borough of Duryea, and reaffirmed Connick, will justify ruling in his favor.