Janus: A New Attack Presents Old Challenges for Unions
In February 2016, it looked all but certain that the Supreme Court would make the public sector right to work. The case, Friedrichs v. California Teachers Association, contended that it was unconstitutional to require non-member employees in unionized government shops to pay “fair share” fees to defray their union’s costs of collective bargaining and worker representation—which cover all workers, member or not. Unions were preparing for the worst.
Then Justice Antonin Scalia died, leaving the court deadlocked on the case. Even though President Obama’s nominee, Merrick Garland, was obstructed by the intransigency of Senate Majority Leader Mitch McConnell, unions thought they had dodged a bullet. If (and when) Hillary Clinton defeated Donald Trump, she would appoint a new justice, creating a liberal majority and striking a severe blow to the conservative legal campaign to undercut unions.
Of course, this did not happen. Trump pulled off the biggest upset in presidential election history and proceeded to appoint Neil Gorsuch, an ultra-conservative federal judge, to the Court. At the same time, Janus v. AFSCME, a case originally launched by Illinois’s anti-union Governor Bruce Rauner, was on its way to becoming Friedrichs 2.0. This case centers on Mark Janus, an Illinois state government employee, represented by the American Federation of State, County, and Municipal Employees, who sued the union because he doesn’t agree with its political positions and believes it’s unconstitutional to require him to pay agency fees that support the union’s contract bargaining and worker representation in grievance proceedings.
In late September, the Supreme Court announced it would hear Janus during its current session. With a conservative majority once again sitting on the bench, legal experts believe it likely that the court will overturn a 40-year legal precedent the Court set in Abood v. Detroit Board of Education, which concluded that while unions can’t compel non-members to pay for its political work, they can require them to pay fees for collective-bargaining services so as to prevent freeloading.
The prohibition of agency fees would be just the latest in a in a long line of right-wing funded attacks on labor unions—but it would be a big one. And, yet again, the expectation of a unfavorable ruling has renewed a urgent debate about not only how public-sector unions should prepare but whether they should radically change their missions.
Anti-union groups have long tried to overturn Abood and, barring unforeseen events, Janus appears to be their best shot to finally do so. In response to the continuous legal attacks, the four largest public-sector unions—AFSCME, the Service Employees International Union, the National Education Association, and the American Federation of Teachers—have tried to shore up their membership ranks in preparation for the inevitable. They have waged concentrated internal organizing campaigns to reconnect with members and convert agency-fee payers to members.
AFSCME has been leading the way on that front. Since 2013, the 1.6 million-member union has made it a point to reach out and talk to members and change the way that the union interacts with its members. As Bloomberg reported earlier this year, AFSCME staffers and activists have have conducted 600,000 face-to-face conversations with members and agency-fee payers. As of 2015, Bloomberg reported, AFSCME estimated that about 35 percent of its current membership would pay union dues no matter what. About half of its members were “on the fence” and about 15 percent would probably not pay dues if they had a choice. “We’ve found that at times we were treating all of our 1.6 million members as if they were activists, and they aren’t,” AFSCME President Lee Saunders told Bloomberg. “We were taking some things for granted.”
The union has created a more sophisticated communications strategy, “including targeting its e-mails and Facebook ads so those who are lukewarm on the union are more likely to get information about obtaining a free associate’s degree through the union than to see a call to action with an upraised fist,” as Bloomberg’s Josh Eidelson wrote.
AFSCME says that its new approach is working, announcing in January that its membership rolls had seen a net growth of nearly 12,000. The union has created a new data and analytics department that it says helps track its internal organizing progress. This proactive strategy marks a stark shift for union engagement—one that labor activists say is long overdue. An AFSCME official told the Prospect that the union will continue the program as planned, and thatJanus doesn’t change anything. As the Prospect reported in the lead up to Friedrichs back in 2015, the other major public-sector unions are embarking on similar internal organizing strategies.
While agency-fee payers are not necessarily a large segment—about 90 percent of public-sector workers covered by union contracts are members—cash-strapped unions have little cushion in their budgets for an exodus of dues-paying members. Any significant reduction in revenue will force unions, which are a key source of foot soldiers and campaign money for Democrats, to dramatically pare down their political programs.
If the Supreme Court rules that government employees can quit their union and not pay any fees for contract benefits, membership rolls will inevitably decrease. The question is by how much, which is why public-sector unions are scrambling to strengthen member connections.
If Abood is overruled, extremely well-funded conservative groups will surely launch expansive outreach campaigns that try to convince union members to “give yourself a raise” by dropping out of their unions. Earlier this month, a Seattle judge dismissed a lawsuit from SEIU 775, a ruling that affirmed a conservative organization’s right to contact the local’s members and inform them of their rights to opt out of membership.
Janus has added a greater sense of urgency from labor activists who are calling for unions to radically overhaul both their legal and organizing strategies.
For instance, if conservatives want to argue that compelled agency fees violate workers’ right to free speech, labor activists like Shaun Richman, the former organizing director for the American Federation of Teachers, believe that unions should in turn make the case that the undermining of federal labor law is itself a violation of workers’ First Amendment rights.
As he recently wrote for In These Times:
There is a certain irony in conservatives applying the First Amendment to collective bargaining, a principle that conservative jurists have studiously avoided for two centuries. If every interaction that a union has with the government is a matter of speech, then we have a stronger argument for instituting a Bill of Rights for labor to protect workers and their right to demand fair treatment on the job. …
If every interaction the government has with a union is a matter of political speech—as a ruling in favor of Janus would imply—unions must respond by forcefully arguing that the rules of the system have been unfairly holding workers back, violating of our rights to free speech, due process and equal protection.
Meanwhile, others say that simply mitigating membership losses is nowhere near enough if labor unions are to be a relevant force in the future. The internal work of signing up agency-fee payers, engaging members, and closely tracking conversations and progress is “necessary, but insufficient,” says Stephen Lerner, a prominent strategist within the labor movement.
“The bigger question is what should unions be doing that both gives people reasons to be in a union and are also about going on offense and building power,” Lerner says. “If [internal organizing and member outreach] is all we do, and even if unions are as wildly successful at it, as they could be, and maintain 80-90-95 percent membership rates, that would be great. But all that means is we’re treading water.”
As Lerner explains, labor law throughout the country has gradually whittled down the scope of things that public-sector unions can bargain over to just wages and benefits. “That allows the right to cast unions as greedy and grubbing for money,” he says. “This is an opportunity for public-sector unions to expand their mission and purpose for the broader good.”
As Rachel M. Cohen wrote for the Prospect last year, teachers unions in places like St. Paul, Los Angeles, and Seattle have embraced a more comprehensive “bargaining for the common good” approach that has won gains for workers and community members alike.
In Saint Paul, the teachers union began to rethink collective bargaining as far back as 2013, convening regular meetings with parents and community members to formulate a shared vision. When the school district refused to negotiate with the union over their community-driven proposals, insisting that teachers could only bargain on matters related to wages and benefits, the union stood its ground.
Teachers held “walk-ins,” launched social media campaigns, and threatened to go on strike. In the end, teachers won expanded preschool programming, reduced class sizes, reduced testing, and established more equitable access to nurses, librarians, counselors, and social workers. “I had negotiated almost a dozen previous contracts for the [union],” said Mary Cathryn Ricker, the former Saint Paul teachers union president. “But, for the first time, I felt that signing a contract was just one step in building a larger movement.”
“I think the key thing to get to here is what is the goal? Is the goal to say it’s victory if we lose 10 percent [of membership] versus 20 to 30 percent? Or is the goal to say, 'Let’s have as many people be in a union as possible, because it’s part of building a movement that challenges the rich and powerful,'” Lerner says. “The goal isn’t to have money and members; that’s a tactic and strategy.”
Erik Loomis, a labor historian at the University of Rhode Island, is skeptical that the threat ofJanus will lead to much of a change as to how unions function—and to what end. “The only way that happens is by significant member involvement in pushing that. It’s not just union officers getting off their butts; members have to get engaged too.”
“Mass unionism democracy is an idea that sounds really good, but if you start getting past the rhetoric, it’s a very difficult task,” he says. “Anybody who thinks easy answer to this is deluding themselves.”
One part of SEIU’s pre-response to Janus is to double down on its political program while it still has its current complement of members and dollars. In 2016 election cycle, the union spent around $70 million. It now plans to spend as much as $100 million in 2018 to elect union-friendly Democratic governors in Midwestern states like Michigan, Iowa, Illinois, and Wisconsin, where Republicans have made significant gains in recent years—and enacted a series of anti-union laws. With Democratic governors, Republicans in control of those states’ legislatures would not be able to gerrymander congressional and legislative districts following the 2020 census.
Some activists question whether such a program is the best use of limited resources, especially since spending so heavily in 2016 yielded next to no electoral return. Loomis, on the other hand, says that history shows mass organizing doesn’t work in the face of hostile state and federal governments. “The idea that SEIU shouldn't put money into these states and should just organize—I see no historical evidence that that would work.”
As union density in the private sector has all but evaporated, public-sector unionism has become the central pillar of organized labor and progressive politics. How, and if, these public-sector unions can adapt and survive in the wake of Janus will likely determine whether there is a future for the American labor movement.