Janus Ruling Is Part of Attack on Labor
The Supreme Court has pulled one of the last legs out from under the union movement, ending the requirement that public employees who opt…
The Supreme Court has pulled one of the last legs out from under the union movement, ending the requirement that public employees who opt not to join unions in their workplaces pay a fair share fee to cover the work unions do for them.
The court, in yet another 5–4 ruling, found that an Illinois law requiring employees to pay “agency fees” violates workers’ free-speech rights. The majority opinion, written by Justice Samuel Alito, says the fees paid by non-union members amount to compelled speech, and it downplayed the cost to unions of providing services to non-members. The assumption is that unions benefit from exclusive oversight and bargaining rights, a benefit the court says outweighs anything an individual employee might get in return, and that the loss of agency fees (i.e., union revenue) will have little effect on union’s ability to represent its members and those non-members it is required to support. In addition, the court claims that any effort to impose different contract terms on non-union employees would violate anti-discrimination rules. The harm to unions and workers, then, because of this ruling, is minimal.
This is nonsense, but it is part of a long-term assault on workers’ rights that ran parallel to the growth of American unionism and has been effective, first, in hamstringing the movement and then in driving it into decline.
Just one in 10 workers were members of a union in 2017 (10.7 percent), among the lowest in union history. The reasons are varied, but they include the changing composition of the workforce (more service and office jobs that have been difficult historically to organize, and fewer factory jobs), economic shifts (the growth of outsourcing and the export of formerly union jobs to non-union states or offshore), a public image that ties unions to corruption and violence, and the mistaken notion that all of us are managers or likely owners. But the political and legal attacks by employers and right-wing legal groups, which have been constant, bear a great deal of responsibility.
He goal is to bankrupt unions, and today’s decision makes that a lot easier. The compelled speech the court cites is not the political speech paid for by members — non-members only pay the portion of union dues attributable to collective bargaining and workplace-related issues, like disciplinary procedures. Non-members in a union shop benefit from these services and, historically, have been required to pay.
The speech in question is the act of collective bargaining itself. Mark Janus, the Illinois state employee who brought suit, argued that he opposed many union positions — including its positions in collective bargaining. The court endorsed this argument, claiming that, because contract negotiations affect state expenditures and other policies, the act of bargaining itself imposes speech on those in whose name it is negotiating.
Essentially, the court has ruled that non-members can get the benefits of union representation but not pay for hat representation.
This, in turn, is likely to have tremendous impact on union budgets. Today’s decision will be similar in its effect to the “right-to-work” laws that exist across the South and that have passed in recent years in former union strongholds like Michigan, Wisconsin, and Indiana. As I wrote in a 2014 essay, here efforts are designed “to starve unions of cash for organizing — bringing unions to new workplaces — and political activities and to further weaken an already weakened institution.”
Roland Zullo, a research scientist with the University of Michigan Institute of Labor and Industrial Relations, told me in 2014 that “right-to-work” efforts — of which Janus is a part — have three basic effects:
First, it makes it harder to negotiate and administer contracts, which are expensive processes. Second, it bleeds strike funds, leaving less money available if a union opts to walk off the job. And third, it makes unions less likely to engage in political behavior, because of the fear that politics — in particular, support for progressive politicians — will members to opt out of official union membership.
“This is about making it more difficult for the labor movement to politically support progressive politicians in (Michigan),” he said. Because of this, he said, the impact goes beyond individual unions. “It is about workplace safety, the minimum wage — those things, too, are affected by the right-to-work law.”
The political and legal barriers have increasingly constrained unions, leading to retreats on the contract front and a continued decline in membership and political clout. According to federal estimates, membership, as a percentage of the workforce, has been in decline since the 1950s with just one in 10 workers now being a member of a union. More than one in three workers belonged to a union in the ‘50s, the high-water mark for union membership.
The labor movement has found it difficult to fight back, mired in internal battles over corruption (see the Teamsters) and a frantic effort to prevent further losses. Organizing new workers and building a broader base just couldn’t be a priority. Efforts to re-envision the movement — organizing by industry, rather than workplace, and focusing on broader social and economic issues like the Fight for Fifteen, could help, but unions cannot expect to get help from the courts, and it is not clear that they can rely on even the most progressive of politicians. The Democrats are better than the Republicans on labor issues, but they remain beholden to corporate money and, in he end, are not reliable allies.
Perhaps he Labor peace we’ve endured since the end of World War II needs to end. Perhaps the labor movement needs to challenge the prohibitions on aggressive actions — wildcat strikes, sit-ins, etc. — that have been in place since Taft-Hartley.