Judicial activism for the 1 percent
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Starting in 2012, the Roberts-led US Supreme Court has engaged in a project of judicially dismantling the long-standing legal structure of public sector unions. In a series of cases that came to a crescendo in 2018 with Janus v. AFSCME, the Supreme Court reversed course on decades of precedent and declared that the so-called “right to work” – the confusing phrase indicating that a worker should be able to benefit but not pay for the costs of her union representation – was a constitutional right for public sector employees. Those who thought that Janus represented the height of anti-union judicial attacks, or that anti-worker groups would take a break after Janus, were wrong.
RENEWED ATTACK
The groups have stepped up and diversified their efforts on a variety of fronts, including fresh legal challenges and nationwide opt-out campaigns. They have expanded their attacks in the courts, bringing suits ranging from those seeking millions in payments from unions for past fair-share fees to recently asking the Supreme Court to accept a case that challenges exclusive representation. Simultaneously, they have invested millions of dollars in trying to convince workers to stop paying their union dues. The good news is that early indications are that so far, the Janus project is failing. Governing magazine reported in December that nationwide trends since the decision show that few members are leaving their unions and that some public-sector unions are actually growing. The bad news is that the federal judiciary and Supreme Court have continued to move in a conservative, pro-business direction, which indicates that workers may be facing future legal losses.
In anticipation of the Janus ruling, anti-union groups such as the State Policy Network, the Freedom Foundation, the Mackinac Center and other groups have engaged in a massive nationwide campaign of targeting union members to try to convince them to stop paying union dues. The groups get public employees’ contact information through public records requests and blitz them with anti-union messaging and information for how to stop paying dues.
However, unions were prepared for such an attack, and they sought new ways to engage members and fight back against the assault. Early indications are that most public unions have not lost membership as predicted, and some have even gained members. Heather Gies at In These Times spoke with representatives from major unions with public sector workers in January 2019 – AFSCME, AFT, SEIU, NEA, and CWA – and each revealed that Janus has not decimated their memberships as many predicted. The unions explained that their ability to buck expectations came through years of preparing for the Janus decision and focusing more on organizing than servicing, reaching out to members directly to discuss how their union can be a tool for collective action and making efforts to cultivate trust. Though it is still too early to predict if the lack of an immediate drop in membership is an indication that unions have suffered the worst of Janus, the immediate membership stability bodes well for labor.
At the same time that these campaigns to convince workers to quit their unions have been going on, anti-union groups have also brought a series of lawsuits trying to force unions to return millions of dollars in past union fees. The lawsuits argue that since the requirement to pay fees has been deemed unconstitutional by the Supreme Court, then unions should have to divest themselves of all the fees they collected over the years when the Supreme Court held that such requirements were permissible. It is unlikely that these lawsuits will be successful, but defending them will still drain unions of resources at a time when they face enormous hurdles.
EXCLUSIVE REPRESENTATION
Anti-union groups are not only attacking labor by building on their success in Janus, but they have also entered a new phase in their attacks by going after exclusive representation. In Uradnik v. Inter Faculty Organization, the right-wing Buckeye Institute is arguing that it violates the constitution for a union to represent all members of the bargaining unit. The lawsuit is being brought by a St. Cloud State University (Minnesota) professor who claims that, despite Supreme Court precedent saying otherwise, it is a violation of her First Amendment rights to have the union speak on her behalf in collective bargaining sessions. Though there is a debate among workers-rights advocates whether labor should abandon exclusive representation or experiment more with members-only unions, the decision should be one that labor organizations decide in an effort to benefit workers. Uradnik seeks to leave the matter up to a Supreme Court that has not hesitated in showing its distaste for labor unions and industrial democracy.
A DARK AGENDA
The push to force “right to work” into the public sector through the Janus case was simply one step – albeit a major one – in the legal attacks on unions. The group that brought the Janus lawsuit, National Right to Work, has a 60-plus-year history of attacking unions in the courts and they have shown no sign of slowing down following Janus. They will try to judicially impose private sector “right to work”; they will continue to sue unions for past dues and fees; they will continue to go before the courts to destroy exclusive representation.
However, in the midst of all the destruction they cause, there is a bright spot, shown through the failure to convince masses of union members to quit their unions following Janus: In the 1965 fight to repeal the anti-union Taft-Hartley amendments to the National Labor Relations Act, the President of the National Right to Work Committee testified to Congress, “The record has shown that good unions don’t need compulsory unionism. I’m sure you gentlemen will agree with me that bad unions don’t deserve it.” The line later became a tagline for the group and was repeated often in its literature. The National Right to Work Committee and many of labor’s opponents assumed that workers would abandon unions under a “right to work” system. What they failed to consider is that there are far more good unions than bad ones, and workers could tell the difference for themselves.
Moshe Z. Marvit is a fellow at The Century Foundation focusing on labor and employment law and policy. He is the coauthor of Why Labor Organizing Should be a Civil Right.
