By Dan Gilbert
Dan Gilbert teaches in the School of Labor and Employment Relations at the University of Illinois.
In a matter of weeks the U.S. Supreme Court is expected to rule in Janus v. American Federation of State, County, and Municipal Employees (AFSCME), Council 31, a case originating from our own state that carries profound implications for the future of the labor movement nationwide.
The plaintiff in the case is Mark Janus, an employee in the Illinois Department of Healthcare and Family Services. Mr. Janus’s workplace is covered by a union contract between AFSCME Council 31 and the State of Illinois. Since Mr. Janus chooses not to be a member of the union, as is his right, he is not required to pay full union dues. Instead, like other non-members, he pays a reduced “fair share” fee, calculated to cover only the cost of negotiating and enforcing the contract from which he benefits. Even though fair share fees cannot legally be used to fund union political activity, Mr. Janus and the anti-union backers of his case argue that the requirement for non-members to pay any fees to the union whatsoever constitutes an infringement on his First Amendment rights. They hold that AFCSME’s collective bargaining efforts are themselves political speech, since they concern the allocation of government resources.
If the conservative-leaning Supreme Court rules in Mr. Janus’s favor, as nearly every informed observer expects, the decision will overturn a legal precedent established over forty years ago. In Abood v. Detroit Board of Education (1977), the Court upheld fair share fees in the public sector. A unanimous decision, the Court’s Abood ruling rejected the argument that collective bargaining by government employees treads on anyone’s First Amendment rights. Moreover, in deciding Abood, the Supreme Court’s justices underscored the value of fair share fees to foster labor peace in the public sector, and to prevent the “free rider” problem of non-union workers reaping the benefits of collective bargaining without sharing in the cost. By overturning Abood, the Court will thus abandon some of the most fundamental principals of modern U.S. labor law, and will encourage the evisceration of unionism, fair compensation, and decent working conditions for a vast segment of the nation’s workforce.
Readers who have been paying attention to legislative attacks on union rights across the Midwest in recent years will recognize Janus v. AFSCME Council 31 as a new chapter in a familiar story. Ever since the Taft-Hartley Act of 1947, individual states have been empowered to pass legislation banning mandatory union fees—so-called right-to-work laws. Over the last decade anti-union Republican governors like Mitch Daniels in Indiana, Scott Walker in Wisconsin, and Rick Snyder in Michigan have shepherded a new wave of right-to-work laws, trumpeting unsupported claims about the necessity of such legislation to create jobs and grow their states’ economies. In fact, researchers (including UIUC’s Robert Bruno and his co-authors, in a series of studies available at www.illinoislabored.org) have consistently demonstrated that right-to-work bills weaken states’ economies and lower workers’ standards of living. Nonetheless, anti-union legislative efforts have continued to win support across the country, thanks to powerful lobbying efforts led by well-funded organizations like the American Legislative Exchange Council and the National Right to Work Committee.
It is hardly surprising that Janus v. AFSCME Council 31 is in large part the work of the same organizations that have advocated for several state-level right-to-work bills, since the effect of the Court’s expected ruling will be the spread of right-to-work conditions to public sector workplaces throughout the United States. Mr. Janus is being represented by the National Right to Work Legal Defense Foundation (NRTWLDF), a body founded in the late 1960s to pursue a broad anti-union agenda through the courts. Like its close relative the National Right to Work Committee, the NRTWLDF is a key part of the network of pro-corporate, anti-worker organizations with ties to the Koch brothers, the right-wing billionaire owners of Koch Industries. Furthermore, even though the case carries the name of an individual state employee (Mark Janus), it represents a core policy objective of Illinois governor Bruce Rauner. Indeed, Rauner began the battle himself in 2015, filing a lawsuit claiming that collecting fair share fees was unconstitutional. Only after a lower court ruled that the governor lacked standing to bring the litigation was Mr. Janus recruited as a plaintiff. Janus v. AFSCME 31 thus represents our own governor’s contribution to the poisonous anti-unionism radiating out of Midwestern state capitols from Madison to Jefferson City.
The first months of 2018 have offered powerful reminders of the stakes of the Janus case. April 4 of this year marked the fiftieth anniversary of Dr. Martin Luther King, Jr.’s murder in Memphis during a strike for union recognition by that city’s sanitation workers. The Memphis struggle was one part of a remarkable wave of labor militancy by public workers—an often-forgotten dimension of the transformative social movements of the 1960s. The Abood decision in 1977 came after over a decade of organizing (often without legal protections or mechanisms for public employee unionism) by teachers, nurses, sanitation workers, fire fighters, and other government workers, resulting in a profound transformation of the American labor movement. Indeed, through actions like the 1968 Memphis strike, public employee unionism would become the driving force of organized labor. As older unions of workers in the private sector faced declines in the age of deindustrialization, globalization, and automation, public employees and other service workers moved to the forefront. Today, public sector workers represent nearly half of all union members in the United States. Throughout much of the public sector labor movement, workers of color and women have led the struggle to raise wages and working conditions. As an attack on the ability of these workers’ unions to survive, Janus v. AFSCME Council 31 represents a threat to one of the most important legacies of the struggles of a half-century ago.
And yet, as we wait for the Supreme Court to issue a decision, we need not look very far to find a source of hope for the future of the labor movement, despite the profound challenges that Janus promises to create. The wave of teachers’ strikes sweeping the nation so far this year—led by rank-and-file educators in right-to-work states like West Virginia and Oklahoma—underscores the difference between labor laws and the labor movement. In the post-Janus era that awaits, public employees and their unions will need to work harder than ever before to build rank-and-file power in their workplaces, and to create coalitions with allies in their communities to fight on behalf of the broader public good. Like the Memphis sanitation workers in 1968, the militant teachers of 2018 have begun to chart the path toward a new generation of transformative struggle.