The Supreme Court Janus decision is a devastating defeat for labor. Public-sector unions now have two choices: continued decline, or a reversion to the kind of militant collective action of the movement’s early years.
As public sector unions contemplate losing key rights under the law, it’s worth remembering that for much of their history, such unions organized with no rights at all.
It wasn’t till 1958 that New York became the first city to authorize collective bargaining for city employees. Wisconsin did the same for state employees in 1959, and federal workers got bargaining rights in 1962.
Yet as early as 1940, a book titled One Thousand Strikes of Government Employees described strikes dating back to the 1830s, when workers at U.S. Navy shipyards stopped work multiple times to press demands for better wages and conditions. ….
In the last decade, an increasingly energized campaign against workers’ rights has been waged across all levels of government—federal, state, and local. Much of the focus of this anti-worker campaign has been on public-sector workers, specifically state and local government workers. For example, several states have passed legislation restricting workers’ right to unionize and collectively bargain for better wages and benefits. Beyond these legislative attacks, public-sector workers have been targeted by repeated legal challenges to their unions’ ability to effectively represent them. The Supreme Court will soon issue a decision in the most recent of these challenges, Janus v. AFSCME Council 31. As a previous EPI report explained, the corporate interests backing the plaintiffs in Janus are seeking to weaken the bargaining power of unions by restricting the ability of public-sector unions to collect “fair share” (or “agency”) fees for the representation they provide. In this new report, we argue that the decision in Janus will have significant impacts on public-sector workers’ wages and job quality as well as on the critical public services these workers provide.
…. Speculation about what a Janus ruling in favor of the plaintiffs will mean for teachers unions has been rampant. Many, if not most, of the analysts who follow education policy and organized labor believe that the ruling will result in decreased power for teachers unions. The logic behind this assumption is simple: teachers unions will lose dues revenue because membership will decrease and former agency-fee payers will cease paying fees for union services. With fewer resources, teachers unions will have less ability to exert their influence in local, state, and federal elections and at the bargaining table. Fewer members, less money, less power. Right?
Not necessarily. Agency fees have been challenged at the state level over the past decade, and two states recently stopped allowing unions to collect them: Wisconsin and Michigan. The passage of those Right-to-Work laws may have caught state affiliates by surprise, unlike the widely anticipated Janus ruling. Even so, a close look at Wisconsin and Michigan may provide important clues about the future of teachers unions in a post-Janus world. ….
Justice Gorsuch’s silence during the Janus oral argument generated considerable buzz. Wishful (yet tentative) commentators hoped the silence was a sign that the new Justice’s originalism would lead him to uphold Abood. To be sure, Justice Thomas, the Court’s other steadfast originalist, voted with the majority in Harris. And commentators have largely assumed that both Justices will vote with Janus here. But winning over either Justice Gorsuch or Justice Thomas could be Abood’s best hope for survival. ….
Key facts about the sector for followers of Janus v. AFSCME Council 31
The forthcoming Supreme Court decision in Janus v. AFSCME Council 31 will likely have profound implications for the 17.3 million workers in state and local government across the country. The case involves a First Amendment challenge to state laws that allow public-sector unions to require state and local government workers who are not union members, but who are represented by a union, to pay “fair share” or “agency” fees for the benefits they receive from union representation. By stripping unions of their ability to collect fair share fees, a decision for the plaintiffs in Janus would hurt all state and local government workers by impeding their ability to organize and bargain collectively. This report provides a profile of the 6.8 million of these workers who are covered by union contracts, and it reviews some key long-term trends in unionization in state and local governments.
As this report shows:
• A majority (58 percent) of union workers (workers covered by a collective bargaining contract) in state and local government are women.
• African Americans, Latinos, and Asian Americans and Pacific Islanders make up one-third of unionized state and local government workers.
• While teachers constitute the single largest subgroup of union workers in state and local government, union workers also include those serving the public as administrators, social workers, police officers, firefighters, and other professionals.
• On average, union workers in state and local government have substantially more formal education than workers in the private sector. Over 60 percent of state and local government union workers have a four-year college degree or more education, compared with one-third in the private sector.
Data on union membership trends shed light on why a Supreme Court decision affecting the unionized state and local government workforce has broad implications. State and local government workers constitute the largest subgroup (42.1 percent) of all union members in the country. Over a third (36.1 percent) of state and local government workers belong to a union, compared with just 6.5 percent of workers in the private sector nationally. This 36.1 percent share is down from the roughly 38- to 40-percent share sustained throughout the 1990s and 2000s. In the 2010s, state and local government worker union membership has been slowly declining as attacks on public-sector unions have ramped up.
Like everyone else in the labor movement, I’m nervously awaiting the Supreme Court ruling in Janus v. AFSCME Council 31, which would weaken public sector unions by letting workers receive the benefits of representation without contributing toward the cost.
But I’ve got a unique vantage point: I work in the same building as the plaintiff, Mark Janus.
We’re both child support specialists for the state of Illinois, where we do accounting on child support cases. I do this work because it’s fulfilling to help kids and single parents get the resources they need to support themselves.
What convinced Mr. Janus to join this destructive lawsuit? Your guess is as good as mine. I do know it’s much bigger than him. He’s the public face, but this case is backed by a network of billionaires and corporate front groups like the National Right-to-Work Foundation.
But the truth is, even Mark Janus himself benefits from union representation. Here are a few of the ways:
1. Without our union, Mr. Janus’s job would probably have been outsourced by now. ….
2. Mr. Janus has received $17,000 in union-negotiated raises. ….
3. The public—including the parents and kids Mr. Janus serves—has access to resources like childcare that our union has fought to defend. ….
4. Our union blocked the employer from doubling the cost of Mr. Janus’s health benefits. ….
5. We make sure Mr. Janus’s office is warm in the winter and cool in the summer. ….
6. Thanks to our union, Mr. Janus will retire with a pension. ….
7. Mr. Janus can get sick and still have a job when he comes back. ….
8. Our union ensured that Mr. Janus could be fairly hired, regardless of his politics. ….
This term, the Supreme Court will decide Janus, where it will determine the future of agency shop agreements in public sector unions. Despite being a public-sector union case, Justice Ginsburg raised a question on many people’s minds at oral argument: “what happens in the private sector?” Her question may prove prescient, considering that five justices in Harris v. Quinn’s dicta questioned an older line of cases upholding private sector agency fee arrangements. Contrary to others who have spoken on this issue, I believe that a holding striking down public sector agency shop agreements in Janus could spill into the private sector without doing much violence to the state action doctrine….
From the abstract:
Unions today are under First Amendment fire, with the compelled speech doctrine as the weapon of choice. Conservative interests are waging a legal war against agreements that include “fair-share service fees,” under which public-sector unions are permitted to charge non-union members to pay their share of the costs of collective bargaining. Espousing libertarian theories of free speech doctrine, the National Right to Work Legal Defense Foundation and its allies maintain that fair-share service fees, at least in the context of public-sector unions, constitute a form of political speech, and that laws mandating their payment by non-union members violate the First Amendment’s prohibition against compelled speech. The Supreme Court is poised to accept this position, having granted certiorari in Janus v. American Federation of State, County & Municipal Employees, Council 31, a case that threatens to overrule the Court’s longstanding acceptance of the constitutionality of fair-share service fees.
Notwithstanding the superficial appeal of the compelled speech argument, this Article argues that pro-union interests have plenty of cover within the First Amendment’s freedom of association doctrine. Viewing Janus and its ilk through an associational lens demonstrates the fallacies that lie behind doubts concerning the constitutionality of such agreements. Although it is doubtful that the Supreme Court will reaffirm the constitutionality of fair-share service fees this term, it is important to air such arguments in order to head off potentially even more significant First Amendment attacks on unionism that are currently underway and to articulate a theory of the First Amendment that remains consistent with the basic New Deal compromise that leaves matters regarding labor policy to our legislatures, where they belong.
From the abstract:
In Agency Fees and the First Amendment, Professor Benjamin Sachs offers a pair of novel arguments for why the Court should pause before invalidating public sector union agency fee agreements throughout the country.
First, he argues that the money sent to unions to offset their bargaining costs is better viewed as the government employer’s money than as the employees’. Collective bargaining agreements force employees to turn the money over to the union on pain of losing their jobs, after all, and so the workers never have a “genuine choice” whether to make the payment at all. That, Sachs explains, should lead us to “treat agency fees as a direct payment from employer to union.”
Second, Sachs argues that the money might instead be better understood as the union’s all along. But for the wage premium that unions bring about for their workers, the argument goes, the fees that unions receive would not exist — and so the money is properly viewed as the union’s property from the outset.
These arguments are among the best defenses of agency fees that I have seen. Ultimately, however, both arguments are susceptible to counterattack for reasons discussed in Parts I and II herein. In a final concluding part, I express my agreement with Sachs on another point: the twenty-two states that currently permit agency fee agreements in the public sector can undo the impact of an adverse outcome in Janus by authorizing government employers to reimburse unions directly for their bargaining costs. It is this legislative alternative that, in my view, warrants the greatest attention from labor proponents in the coming years.