The Janus Decision Was Never About the First Amendment. It Was About Destroying Labor.

Bill Fletcher, Jr.

The objective of the Supreme Court majority has always been the destruction of labor unions. (Photo by Drew Angerer/Getty Images)

There is noth­ing about the Supreme Court’s 5 – 4 deci­sion in Janus v. AFSCME, over­turn­ing 41 years of prece­dent and declar­ing that agency fee/​fair share is uncon­sti­tu­tion­al, that sur­prised me. It would have been a mir­a­cle for the con­ser­v­a­tive major­i­ty to have decid­ed otherwise. 

Per­haps, if they had been true to their alleged con­ser­v­a­tive prin­ci­ples, they would have decid­ed that the mat­ter of whether pub­lic sec­tor unions could nego­ti­ate agree­ments with gov­ern­men­tal enti­ties that pro­vid­ed for rep­re­sent­ed — though non-union — work­ers to pay their fair share, was a mat­ter for the states. But as we have seen over time, there are few prin­ci­ples that the right-wing feels bound to respect.

Much will be writ­ten about the Janus v. AFSCME deci­sion in the com­ing days and months by peo­ple far more learned than this writer. Nev­er­the­less it felt impor­tant to make note of one crit­i­cal issue: the mat­ter at stake had noth­ing to do with the First Amendment.

The Court major­i­ty sug­gests that agency fees paid by non-mem­bers chal­lenge the free­dom of speech of work­ers who choose not to join a labor union. As the Court minor­i­ty points out in their dis­sent, that is not the actu­al issue at hand. Unions do not inhib­it the free­dom of speech of mem­bers or non-mem­ber agency fee pay­ers. Labor unions do have a statu­to­ry right to fair­ly and equi­tably rep­re­sent all work­ers in a giv­en bar­gain­ing unit, i.e., with­in a par­tic­u­lar juris­dic­tion where com­mon inter­ests have been iden­ti­fied. In fact, labor unions are, by law, the exclu­sive rep­re­sen­ta­tives of work­ers in a cer­ti­fied bar­gain­ing unit, i.e., there can­not be anoth­er union rep­re­sent­ing the same workers.

The mat­ter before the Court came down to whether work­ers who are rep­re­sent­ed by a union have an oblig­a­tion to con­tribute towards the cost of rep­re­sen­ta­tion. In any oth­er insti­tu­tion the mat­ter would be sim­ple. If, for instance, you live in a town or city and you are required to pay tax­es, you do so in order to cov­er the col­lec­tive costs of that juris­dic­tion. Indi­vid­u­als can­not declare one day that as a result of dif­fer­ences with a gov­ern­ment body that they should be able to avoid tax­es. Yes, peo­ple have tried that route and there is not a good end­ing to that story.

In the case of labor unions, they have been grant­ed by law the right and duty to rep­re­sent work­ers in a giv­en eco­nom­ic juris­dic­tion — a bar­gain­ing unit. Work­ers in the pub­lic sec­tor are not oblig­at­ed to join the union but the com­pro­mise that was estab­lished, and been in oper­a­tion for 41 years in many states that per­mit pub­lic sec­tor union­ism, was that those who choose not to join con­tribute towards rep­re­sen­ta­tion costs. Thus, an indi­vid­ual work­er who decides not to join the union may, nev­er­the­less, face an issue for which they need rep­re­sen­ta­tion. Rep­re­sen­ta­tion costs mon­ey. A case may go to arbi­tra­tion, for instance, which can be very expen­sive. There may be issues that have to be lit­i­gat­ed in court. Indeed, an issue may need to go to a leg­isla­tive body. These steps can be very expen­sive. The Supreme Court major­i­ty knows this and, essen­tial­ly, what they said today is that they do not give a damn.

The objec­tive of the Court major­i­ty, along with their polit­i­cal allies, has always been the destruc­tion of labor unions. Of course they will not con­firm that, but their actions have been con­tin­u­ous­ly telegraphed. Janus is a deci­sion that aims to weak­en the abil­i­ty of pub­lic sec­tor unions to rep­re­sent their respec­tive work­forces. As the Supreme Court major­i­ty knows, from any assess­ment of open shop” sit­u­a­tions, when a union is com­pelled — at its own cost — to rep­re­sent work­ers that they must rep­re­sent by law, their resources are drained.

The moves towards open shop,” that is, no forms of union secu­ri­ty, have been under­way for a long time. There have been, through­out the his­to­ry of labor unions in the Unit­ed States, peri­od­ic offen­sives by the employ­er class to either elim­i­nate unions alto­geth­er or weak­en them sig­nif­i­cant­ly. In the cur­rent moment, at the fed­er­al, state, coun­ty and munic­i­pal lev­els, pub­lic sec­tor unions are per­ceived as an obsta­cle to the polit­i­cal Right and much of cor­po­rate Amer­i­ca that seeks to elim­i­nate the social safe­ty net, pri­va­tize all that can be pri­va­tized, and weak­en gov­ern­ment to the point that its only rel­e­vance is in the realm of police, fire, pris­ons and, of course, the military.

Too many unions lived in utter denial about the dan­ger of the con­tin­u­ous open shop” offen­sives. They assumed that this would not hap­pen in either the pub­lic or pri­vate sec­tor. In some of the worst cas­es they relied on agency fee pay­ers rather than recruit­ing all agency fee pay­ers into the unions as full mem­bers. The labor unions in the U.S. Postal Ser­vice have demon­strat­ed that one can be suc­cess­ful in orga­niz­ing in an open shop envi­ron­ment. Sev­er­al of the bar­gain­ing coun­cils in the Amer­i­can Fed­er­a­tion of Gov­ern­ment Employ­ees have also demon­strat­ed this.

Now the imme­di­ate chal­lenge fac­ing labor unions is their trans­for­ma­tion into mil­i­tant, for­ward-think­ing and social jus­tice insti­tu­tions. For years most of the lead­er­ship of orga­nized labor believed that union trans­for­ma­tion could be punt­ed or, at best, resolved through sim­ply orga­niz­ing more mem­bers. The Supreme Court’s major­i­ty has now demon­strat­ed that we have only two choic­es: fight or die. And fight­ing means becom­ing orga­ni­za­tions that are con­stant­ly speak­ing on behalf of work­ers, whether in our ranks or not, demon­strat­ing each day that our move­ment is a move­ment ground­ed in the strug­gle for social and eco­nom­ic jus­tice. Case in point: the teacher-led insur­gen­cies that spread across the coun­try this year.

Janus is not the end of the sto­ry. It is sim­ply the end of a chapter.

Bill Fletch­er, Jr. is a talk show host, writer, activist, and trade union­ist. He is the exec­u­tive edi­tor of The Glob­al African Work­er, a co-author (with Fer­nan­do Gapasin) of Soli­tary Divid­ed, and the author of They’re Bank­rupt­ing Us” – Twen­ty Oth­er Myths about Unions. You can fol­low him on Twit­ter, Face­book and at www​.bill​fletcher​jr​.com.
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