The Supreme Court’s 5-4 ruling yesterday in Janus v. AFSCME Council 31 — which overturned a 41-year-old ruling that nonunion government workers in unionized workplaces have to pay fees to help cover the costs of union activities they benefit from — was a major blow to labor unions, and the latest in a string of far-right rulings since Justice Neil Gorsuch was appointed by Donald Trump. But leaders of New York City public-sector unions say that being required to represent nonmembers for nothing won’t hurt them as much as it was intended to, because they’ve been preparing for it by signing up as many members as possible.
“For the past three years, we’ve been preparing our members for this day,” says Lester Crockett, president of Civil Service Employees Association Region 2, which covers the New York City metropolitan area. The 300,000-member union has eight workers in its Albany headquarters taking phone calls from workers who want to stay, quit, or are borderline, he adds.
AFSCME District Council 37 executive director Henry Garrido told a rally at City Hall hours after the Janus decision that his union represented 28,000 nonmembers just three years ago. Today, he said, there are less than 7,000.
“We knew this was coming,” says Gloria Middleton, president of Communications Workers of America Local 1180, which represents about 8,600 city administrators. Middleton says 94 percent of these administrators are now full union members; as for the others, she says, “we let them know what they will be losing if they don’t join”: They can’t vote in union elections or to ratify contracts, aren’t eligible for union-funded education programs, and, under a state law that went into effect April 1, the union no longer has to represent them in disciplinary proceedings.
Ever since the Supreme Court’s 1977 Abood v. Detroit Board of Education ruling, public-sector unions have been unable to collect dues from nonunion workers to cover explicitly political activities such as campaign contributions. But they can charge separate “agency fees” that go toward such things as the costs of collective bargaining and representation in grievance procedures, which cover all employees, union members or otherwise.
The lawsuit ruled on yesterday was filed by Illinois state employee Mark Janus with the backing of several anti-union organizations. They have argued that all activity by public-sector unions is objectively political, because it affects public spending and policies. The court upheld Janus’s claim that his free-speech rights were violated because he was forced to contribute about $45 a month to an organization that opposed slashing his pension and those of his fellow workers.
That court challenge was directly aimed at undermining public-sector unions, which now account for about half of the nation’s union members. In New York State, the most heavily unionized state in the country, about two-thirds of public-sector workers are members, compared with about 15 percent in the private sector, according to the state comptroller’s office. In 2016, according to a City University of New York study, the proportion of agency-fee payers in major city unions ranged from 4.8 percent of membership in the United Federation of Teachers to 16.5 percent in DC 37, which currently represents 125,000 city workers.
The Janus case was part of a concerted campaign to chip away at workers’ rights and unions’ power through litigation and legislation, much like the anti-abortion movement’s tactics of backing measures such as parental-consent laws, compulsory waiting periods, and intentionally burdensome safety-code regulations.
Over the last eight years, six states — Wisconsin, Michigan, Indiana, West Virginia, Kentucky, and, tentatively, Missouri — have enacted so-called right-to-work laws (called “right to work for less” by union supporters), which, like the Janus decision, allow workers to refuse to pay fees to the unions that represent them. Others have repealed “prevailing wage laws” that set floors for wages on public construction projects, and placed severe restrictions on public workers’ collective bargaining. In Wisconsin, where Governor Scott Walker pushed through a 2011 state law prohibiting public-sector unions from bargaining over anything but wage increases that don’t exceed the rate of inflation, the share of government workers who are union members fell from 50.3 percent in 2011 to 22.7 percent in 2016.
Several states, including Ohio, Indiana, Iowa, and Alabama, have prohibited local governments from setting minimum wages higher than the state’s. And Iowa in 2017 passed a law that required public-sector unions to seek recertification every time their contract expired — and to win, they had to get a majority of all workers in the bargaining unit, not just the ones who actually voted. (In recertification votes last October, Iowa unions won almost 98 percent of the vote, but lost 32 out of 468 bargaining units because of the hyper-majority mandate.)
These measures, associated litigation, and anti-union propaganda campaigns have been backed by a network of far-right financiers, most notoriously the Koch brothers, but also local “little Koch brothers” such as David Humphreys and Rex Sinquefield in Missouri, packing-materials manufacturer Richard Uihlein in Illinois, and Betsy and Dick DeVos in Michigan.
At the court’s oral arguments in February, virtually all of the roughly 100 demonstrators supporting Mark Janus outside came from the Koch brothers’ Americans for Prosperity and the much lesser-known State Policy Network, a nationwide alliance of 64 state-based think tanks. In a 2016 fundraising letter, the network said that cutting off “big government” unions’ income from dues and fees would deliver the “mortal blow” that would permanently break the left’s “stranglehold on our society.” The Illinois Policy Institute, its Chicago-based affiliate, represented Janus through its litigation branch.
“People like the Koch brothers and these big billionaires, if they can do anything to cause us to have less strength, they’ll do it with a smile on their face,” says the CSEA’s Crockett.
The Janus decision may also open the door to future litigation chipping away at union rights, such as that of being workers’ sole representative in negotiations over pay, benefits, and working conditions. “Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees,” Justice Alito wrote, noting that it prevents them from negotiating with their employer on their own.
While that comment is legally dicta, or not a binding part of the decision, it is the same tactic Alito used a similar tactic in his opinion in the 2014 Harris v. Quinn case — a 5-4 decision that exempted Medicaid-paid home healthcare workers from agency fees on the grounds that they were only “partial public employees” — to signal that he would welcome a challenge to Abood. In that dicta, he called the Abood precedent “questionable on several grounds,” arguing that bargaining to increase public workers’ pensions, for example, was inherently political activity.
In the meantime, union leaders are in the position of having to convince workers that they’re better off paying dues to become union members even though they’d reap the benefits of collective bargaining and grievance procedures whether or not they join. That’s left the leaders, paradoxically, to echo arguments made by anti-union forces that having dues be voluntary will compel unions to do a better job of reaching workers. “This is something we should have always been doing,” says Crockett. “We got too comfortable with money coming in automatically. We stopped talking to our members.”
“We’re in for a fight, but it’s a fight we can win,” insists Middleton. Some CWA locals in right-to-work states have 95 percent union membership among the workers they represent, she adds. “When they understand what unions are about, they join.”