Janus and the Future of Collective Bargaining : Rhetorically Predicting a First Amendment Right to Negotiation

The importance of the U.S. Supreme Court ruling in Janus v. American Federation of State, County, and Municipal Employees has been widely recognized for its effect on reducing the power and influence of public unions. A close reading of the majority opinion provides a clue that compulsory collective bargaining itself may be settling into the court’s crosshairs. Collective bargaining is an important tool, by which labor can reduce the often-inherent power imbalance it has with ownership and management. Yet as this Article outlines, the interests of individual workers can often be at odds with those other workers or even the union itself. When the law designates a union as the exclusive bargaining agent for a group of workers, it prohibits individual workers from advocating for their own interests. As the U.S. Supreme Court recognized in Janus, this results in a substantial reduction of the rights of workers, particularly those who do not feel the union represents their interests. This Article will explore the history of unions and collective bargaining, the variety of worker rights that are affected by compulsory collective bargaining, why the Supreme Court might choose to eliminate compulsory collective bargaining via the First Amendment, and what may ultimately replace it