Daily Labor Report®

Conservative Groups Continue Push to Weaken Health-Care Unions

Feb. 27, 2019, 9:22 PM

A ruling from a fourth federal appeals court may begin to close the door on a corporate-backed push to reduce union representation in various health-care sectors, at least for some time.

The U.S. Court of Appeals for the Ninth Circuit said it joined the First, Seventh and Eighth circuits Feb. 26 in holding that states don’t violate the U.S. Constitution’s free association or speech provisions by allowing unions to be exclusive representatives for sectors of government-subsidized workers. The rulings affect a number of states that provide financial assistance for qualifying citizens to receive home health-care or child care, including California.

Republican politicians and corporate-backed organizations like the National Right to Work Legal Defense Foundation and Freedom Foundation seized on the U.S. Supreme Court’s Janus v. AFSCME decision to attack those arrangements and a range of other union-related public policies. The majority in Janus last year ruled that the First Amendment is violated when nonmembers are compelled to pay dues, although a smaller amount, to the public unions that bargain for their workplace contract.

Nonetheless, “every circuit court to address the constitutionality of exclusive bargaining arrangements"—separate from the constitutionality of compelling financial support for such arrangements—"has concluded that these provisions do not violate the First Amendment,” the Ninth Circuit said in its unanimous opinion in Mentele v. Miller.

The lower appeals courts’ agreement on the question is some indication that the justices won’t be reviewing their interpretations of the law after Janus anytime soon. The conservative organizations, though, remain somewhat optimistic.

The NRTW has sought Supreme Court review of Bierman v. Dayton, a similar case out of the Eighth Circuit, but the justices already denied a petition to hear a different dispute with virtually the same issues. The lower appeals courts’ agreement on the question is some indication that the justices won’t be reviewing their interpretations of the law after Janus anytime soon.

“So far, the post-Janus cases have not made any headway, and this is just another example,” Michael Rubin, an employee-side attorney at Altshuler Berzon LLP in San Francisco, told Bloomberg Law Feb. 27. The law firm represented the Service Employees International Union Local 925 in the Ninth Circuit case.

“Obviously you take it court by court, stage by stage, but so far it appears as though the courts are finding one overreach after another by NRTW and other folks spearheading this well-funded effort,” Rubin said.

A spokesperson for the NRTW disagreed with Rubin, saying there’s still a good chance the court will take up the issue sometime soon.

Conservative Groups Eye Next Opportunity

“I’d hardly call the door closed, since more or less the same issue presented in Mentele is currently pending before the Supreme Court in our Bierman case out of the 8th Circuit,” Patrick Semmens of NRTW said in a Feb. 27 e-mail to Bloomberg Law.

“The SEIU has been ordered to file a response to the cert petition by April 3, so we may know in the next few months if the Supreme Court is interested in this issue,” he said.

Semmens noted that the high court called exclusive representation a “significant impingement on associational freedoms” that wouldn’t be legal in other contexts, in its Janus ruling.

The Freedom Foundation also filed an amicus brief in support of the petitioners in Bierman and another case called Uradnik v. Inter Faculty Organization, according to Maxford Nelson, the organization’s labor policy director.

They’ve asked the Supreme Court to “grant review and hold that allowing a union to control a public employee’s relationship with their employer against their wishes violates the First Amendment,” Nelson said.

“In addition, we may appeal Mentele to the Supreme Court as well,” Nelson said.

It’s true that no legal question is settled “until a final judgment” comes down from the high court, and no other cases remain “ripe” for review, Rubin said.

“But thus far, courts who’ve taken a clear eyed view of the applicable facts and law have rejected the efforts of organizations like Right to Work to expand Janus beyond its terms, and I’m fairly confident that will continue.”

The Second Circuit has also ruled similarly to the Ninth, although it did so in one particular case, as opposed to setting precedent for all states within its jurisdiction.

—With assistance from Robert Iafolla

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Chris Opfer at copfer@bloomberglaw.com

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