Supreme Court’s Ruling Against Public Unions Leaves Murky Outlook for Academic Labor

Public universities and labor experts grappled on Wednesday with figuring out the impact of the Supreme Court’s ruling that public-sector employees cannot be required to pay union dues even if they benefit from collective bargaining.

In Janus v. American Federation of State, County, and Municipal Employees, No. 16-1466, the court sided, 5 to 4, with Mark Janus, who argued that he should not be forced to pay dues to the union that represents employees at his workplace.

“We conclude that this arrangement violates the free-speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern,” the majority opinion says.

Faculty groups denounced the opinion, written by Justice Samuel A. Alito, as effectively turning the entire American public sector into “right to work” status, in which employees cannot be required to join a union or pay union dues. The Janus ruling “is part of a broad assault on public institutions and the common good,” according to a statement from the American Association of University Professors.

Unionization on campuses, public or private, has always been a sensitive issue for administrators. It often exemplifies the clashing of their generally progressive values with the reality of the modern university as a business.

The Chronicle spoke with William B. Gould IV, a former chairman of the National Labor Relations Board who is also an emeritus law professor at Stanford University, about what the ruling could mean for public colleges and the labor movement broadly. The interview has been edited for length and clarity.

Q. What does the Janus ruling mean for public higher education?

A. It’s difficult to say. It depends upon the degree of internecine warfare that might exist between unionists and non-unionists in that sphere and the position of the university toward its union. That will vary from campus to campus. It’s quite possible that this could promote greater assertiveness, maybe aggressiveness, by universities confronting unions at a time when resources are limited and stretched. Clearly, because of the ruling’s full-fledged opposition to the system of private financing and dispute resolution, it will create a lot of instability and litigation.

Q. How so?

A. There will now be a requirement that any dues collected for nonmembers under any circumstances must contain an affirmative declaration by the nonmember that he or she wants to be represented in collective bargaining. Until today, the system has generally provided that there’s an obligation on the nonmember to opt out. So there will be a lot of litigation around that, whether the notice given was sufficient.

Also, nonmembers who want to have a grievance taken up may find it to be very costly, and that could result in litigation. The whole system of dues payments is based upon a kind of insurance system.

Q. I’ve heard union supporters say today’s ruling may lead to greater cohesion and energy among labor organizers. How big of a blow was today’s ruling for the organized-labor movement?

A. It’s a very big blow. All of the alternatives set forth by the unions are second best, at best. Our whole system of collective bargaining and dispute resolution is based upon private financing. That’s the bedrock of the American system. Now the court has, in one fell swoop, eliminated the ability of the system to be financed effectively.

Q. Although I haven’t heard from any university administrator about this ruling, I imagine privately some must be pleased.

A. I’m sure they are. Universities don’t like to be identified as engaging in the same kind of behavior as private-sector employers.

Q. But they do engage in that behavior.

A. Of course they do.

Q. Could this complicate the relationships that universities have with their unions?

A. Yes, particularly in heavily unionized jurisdictions.

Q. What’s the future of collective bargaining in higher education? Is there a trend line?

A. We’re at a point where it’s very much up in the air. You’ve seen a number of universities, for a variety of reasons, have decided to circumvent the possibility of the reversal of the 2016 Columbia University decision [an NLRB ruling that allowed graduate assistants at private colleges to bargain collectively]. Universities like Harvard and Georgetown are establishing their own systems, independent of a change in labor law under Trump’s National Labor Relations Board. In many respects, the graduate-assistant issue is the most important one. This is a group, many of whom feel unfairly treated, who are articulate and, in substantial measure, pro-union. We don’t know if the Trump board is a passing fancy. We’ll find out in 2020.

Q. Do you expect graduate-student unionization at private universities to be taken up by the NLRB again, this time with a Trump-appointed board?

A. If they can get their hands on a decision. The unions are trying to avoid the board on this issue. They don’t want to give the board a cause. The unions are trying to do two things: Stay away from the board, like with Harvard and Georgetown, and hope that the U.S. Court of Appeals in the District of Columbia, where the Columbia University ruling would likely go, comes down with a favorable ruling.

Vimal Patel covers graduate education. Follow him on Twitter @vimalpatel232, or write to him at vimal.patel@chronicle.com.