U.S. Supreme Court ruling in Janus v. AFSCME could cripple labor unions
As the New Year brings us closer to a decision from the U.S. Supreme Court in Janus v. AFSCME, many labor professionals are wringing their hands at what could be the biggest anti-union judicial pronouncement in 40 years. A ruling in favor of Janus would mean public sector employees could choose to quit their unions and not pay dues, while the unions would still be legally-bound to represent them — a financially draining scenario for the labor movement.
The case of Janus is not a new legal philosophy. In fact, the same issues were previously decided in the 1977 SCOTUS decision Abood v. Detroit Board of Education, which found that unionized states’ need to maintain labor peace overrides an individual employee’s right to freedom of speech and association. The Abood case did change one thing in deference to the First Amendment: It allowed an employee who disagreed with their union’s political campaigning to request a partial refund of union dues used for political actions. But Abood also mandated the continued obligation of the employee to pay normal union dues to support all other labor activities including representation for wages and benefits, grievances and disciplinary matters.
This judicial compromise has been followed and worked well for a long time — although the infiltration of non-unionized employees into unionized work environments has steadily eroded the great trade unions in many traditionally pro-labor states. Right now, the general feeling is that the Supreme Court has securely turned to the conservative right — and the addition of Justice Neil Gorsuch has been the ultimate score for anti-union organizations footing the legal bills for the plaintiff in Janus. Follow the money and you will easily see that top corporate executives and billionaire contributors to Right-to-Work organizations throughout the country are willing to dig deep to help eliminate the union shop — one of the main protections that helps keep workers’ wages above minimum wage. They are joined by the political front groups of the anti-union movement, such as the American Legislative Exchange Council, or ALEC, which funnels large amounts of money to local, state and federal politicians to advance its anti-union agenda. Recent anti-union successes in Wisconsin, Indiana, Michigan, Missouri and Ohio have made this group into a juggernaut that has changed the playing field when it comes to employee rights to decent wages and benefits.
Even so, a small part of me believes that Chief Justice John Roberts’ concern for his legacy on the bench might help preserve the status quo and uphold the Abood precedent — which should mean victory for AFSCME. Few among us want to become the poster boy for destroying wage growth as the result of a judicial decision. Anyone who looks at the data regarding wages and benefits in unionized states compared to non-unionized states can clearly discern the disparity in income among employees. While many non-union advocates downplay the wage disparity by pointing out the difference is mere single digits, the truth lies in the data. The most recent U.S. Department of Labor reports show that police in unionized states make twice to three times as much as police in right-to-work states. It’s unbelievable to me that a state trooper in Florida, Mississippi, Virginia or any right-to-work state can survive on the paltry pay and benefits they are afforded. Most law enforcers in these states are forced to work multiple jobs in security or part-time policing to reach some semblance of a decent living.
But what’s at stake here is more than wages and benefits — it’s the ability of workers to come together and work effectively for the betterment of their own lives, which in turn, improves the quality of life in their homes and the communities they live in. If SCOTUS does find in favor of Janus, it will greatly impact a union’s ability to speak as one unified voice for its members, and as its coffers drain so will its political strength and its overall effectiveness. And as we’ve already seen in right-to-work states, the end result overall is a profound weakening of workers’ abilities to earn salaries and benefits commensurate with the demands of their jobs.
Meanwhile, the erosion of a dues-paying membership could cripple the public-sector labor movement, union advocates say.
District Council 37 — the city’s largest public-sector union with roughly 120,000 members — could be among the hardest hit, labor sources said.
“Cops, firefighters, the uniformed unions that earn the higher salaries — they’re not really feeling the pinch from paying dues,” said one longtime city union member. “But DC 37 members on a lower pay scale do feel it, and likely many will opt out of paying if they can.”
On its website, DC 37 had already started sending motivational messages to its troops — touting new innovations like its Member Action Teams, volunteer organizers who do outreach to the union’s widespread network of employees, who exist across nearly every city agency.
DC 37 is a charter member of AFSCME, the national union that’s being sued by Illinois government employee Mark Janus.
Janus has argued that he doesn’t agree with AFSCME’s political positions and that he should not be forced to pay fees to support the union — even though it collectively bargains and protects Illinois state employees, including him.
Backed by numerous conservative and right-to-work groups, Janus sued the union for abridging his First Amendment rights.
Underpinning his legal challenge is a 1977 precedent set in the Abood vs. Detroit Board of Education case.
On the merits, it’s remarkably similar to the claims made by Janus, and in 1977, the court ruled that unions could require nonmembers to help pay for collective bargaining, in part to ensure “labor peace.”
But workers don’t have to pay for unions’ political work — like doorknocking, leafleting and campaign donations — as that does violate their First Amendment rights, the Abood decision said.
That ruling has stood since — but not without challenges.
Last year, the Supreme Court heard Friedrichs vs. the California Teachers Association, also funded by right-wing groups and also arguing that paying union fees was a First Amendment infringement on workers who were not members.
The justices heard Friedrichs arguments in January 2016 — but the death of Justice Antonin Scalia a month later resulted in a 4-to-4 deadlock. The case reverted to the ruling of the lower court, which found in favor of the teachers union.
But the labor movement’s relief was short-lived, because the Janus case now looms.
Scalia’s replacement, Justice Neil Gorsuch, is a constitutional originalist, meaning he believes the document should be construed as intended by its initial drafters.
That hasn’t given labor leaders much hope that he will uphold Abood — and as Gorsuch will likely be the decisive vote, the expectation is that AFSCME will lose.
At Transport Workers Union Local 100, a union that has experienced firsthand the debilitating effect of losing dues, a plan is already afoot to counteract an unfavorable Janus ruling.
Recently, Local 100 President Tony Utano rolled out his ideas at a labor talk — and put heavy emphasis on ramping up communication to existing and new members, to remind them and convince them why they need to support the union.
“Janus will mean that we will have to make still more effective use of our resources, and double down on communicating with members. We will have to represent our members as well as we ever have, even if we have less money to do it with. How we do this will take forethought, but, even more, it will take adapting to new times as we go along,” Utano said.
“The overriding point is this: This is something we can do. We can hold our ranks together. . . . What it takes above all is working with our members and coming through for them,” he said.
Local 100’s roughly 43,000 New York members also have an example to follow in the national Transport Workers Union of America — which has shops in two states that are already right-to-work, meaning employees there don’t have to pay fees to unions even when they benefit from union protections. Twenty-eight states in the U.S. are currently right-to-work.
“We have excellent dues density in those shops in Houston and Miami, even though they are right-to-work states,” said John Samuelsen president of the national TWU.
“We brought the presidents in of those locals, which have about 3,000 members each, to form a national committee of public-sector unions to share information and insights,” he said.
Samuelsen is well aware of how fast a union’s fortunes can sink when the dues-paying membership disappears. In 2005, following a three-day transit strike in New York, Local 100 lost its rights to automatic dues checkoff in members’ pay as a punishment for its actions.
Once paying dues become voluntary, many union members put the money in their pockets, not Local 100’s coffers.
By the time Samuelsen was elected Local 100 president in 2009, the union had lost roughly $11 million in unpaid dues, he said.
Some workers even refused to pay after the penalty was lifted and automatic dues checkoff was restored, he said.
To get the cash back, Samuelsen had to mount an aggressive outreach campaign to show members what their money did for them via the union — and make sure to deliver real results in contracts and job benefits.
Local 100 has made tremendous strides in getting its former scofflaws back on the books and recouping losses, said the union leader.
“We run that same kind of sophisticated shop in Houston and Miami, and the members realize that their livelihoods are linked to the success of the union,” Samuelsen said. “This situation is complicated, but in some ways the answer is simple: We fight. We fight for our members and we fight with them.”
As an example, he pointed to Columbus, Ohio, where the TWU is in a protracted battle to stop the automation of bus driver jobs. “This is why the trade union movement is still so relevant — if TWU wasn’t in Columbus, those bus operators would be doomed. But we are there, and because of that those jobs will be there for the next 20 years and beyond,” Samuelsen said.
If the Supreme Court rules in favor of Mark Janus, the impact will be felt fairly quickly, said labor lawyer Tim Yeung.
Because the case hinges on a constitutional challenge, if Janus wins, the ruling will supersede all other laws, he said. “It’s the Constitution, so that trumps all,” Yeung noted.
It’s not clear if public-sector unions would have to wait for workers to make a legal challenge to retract agency fees — or if they would have to immediately stop collecting them from nonmembers. Either way, “It’s not going to take long to affect the whole country,” Yeung noted.
In New York, public-sector unions have some measure of protection in the relatively labor-friendly state Legislature, and with Gov. Cuomo, who frequently expresses his support for union jobs. Already, state Sen. Marisol Alcantara (D-Manhattan), chairwoman of the Senate Labor Committee, has introduced legislation to make it easier to join a public-sector union in New York.
And state Sen. Diane Savino (D-S.I.), a staunch labor backer, has indicated she might be willing to go even further. “It’s premature right now to talk about specifics, but the biggest question is about duty of fair representation,” she told the Daily News. “Is it fair to force a union to represent someone who doesn’t want to be part of the union and isn’t paying any dues or fees? I think not. If you don’t want to be at the bargaining table and you want to go negotiate your own pay and benefits, go ahead and negotiate your own contract,” said Savino. But, “Others don’t necessarily see it that way,” she added.
Another question would be the right of a union to request a rebate or a payment from a nonmember in exchange for representing them at grievances or providing other job protections, she said. The best solution, the senator noted, is for unions to increase interactions with members and explain the benefits — not just financial — of having a strong voice in the workplace.
“Let’s hope for a good decision and be ready for a bad one,” Savino said. “But if you think this case really has anything to do with a public employee somewhere worried about First Amendment rights, I have a bridge to sell you.”
Richard Mulvaney is a retired NYPD Lieutenant. For the past 27 years he has worked as a lawyer primarily representing police officers across the country. He has worked in the Bronx District Attorney’s Office and as a Department Special Prosecutor for the NYPD, and is a frequent lecturer on union employee rights and collective bargaining.