How Business Unionism Got Us to Janus

Lois Weiner November 9, 2017

Photo of a union meeting by Matej Kastelic/Shutterstock

In Sep­tem­ber, the Supreme Court agreed to hear Janus vs. AFSCME, a case that has the poten­tial to under­mine pub­lic sec­tor unions by cur­tail­ing unions’ right to charge non-mem­bers an agency fee.” This fee cov­ers the pro­tec­tion and ser­vices the union is oblig­at­ed to pro­vide all employ­ees in the bar­gain­ing unit.

Many labor lead­ers and pun­dits have iden­ti­fied unions’ loss of rev­enue as the most dire con­se­quence of an unfa­vor­able rul­ing in the Janus case. Oth­ers have point­ed out that the forces behind Janus don’t only aim to weak­en pub­lic employ­ee unions: they are seek­ing to destroy the pub­lic sec­tor and pub­lic own­er­ship of resources across the board.

How­ev­er, the Right’s deep­er, dark­er strate­gic pur­pose has been most­ly ignored, even by unions: Janus fits in with a larg­er project, led by the State Pol­i­cy Net­work — a net­work of right-wing think tanks — that aims not only to defund and defang” unions but to deliv­er the mor­tal blow to per­ma­nent­ly break” the Left’s stran­gle­hold on our society.”

Any­one who cares about democ­ra­cy and the social and eco­nom­ic well-being of work­ers has a stake in how unions will respond to the Court’s deci­sion. And with Trump-appointee Neil Gor­such now sit­ting on the bench, it appears like­ly that the rul­ing will not go in labor’s favor.

The real cri­sis at hand

The tac­it assump­tion of Janus sup­port­ers and foes alike is that, when faced with a choice between being a union mem­ber and pay­ing dues or not, sig­nif­i­cant num­bers of mem­bers will bolt, and non-mem­bers who have been pay­ing agency fees” will not join. Because unions under­stand the dan­ger posed by Janus as large­ly finan­cial, they have focused on sav­ing mon­ey, cut­ting staff and pur­su­ing merg­ers. Some have also deter­mined that they must be proac­tive to stave off mass deser­tions and are reach­ing out to mem­bers to solid­i­fy their sup­port as dues payers.

Belt-tight­en­ing and talk­ing to mem­bers may tem­porar­i­ly for­ti­fy union appa­ra­tus, but this approach ignores the ques­tion Janus demands we ask: Why is labor pre­dict­ing mem­bers will desert their unions and that agency-fee pay­ers will refuse to join?

These assump­tions labor holds around Janus exem­pli­fy the real cri­sis unions con­front — one not often dis­cussed, even behind closed doors. In defin­ing their pur­pose pri­mar­i­ly as pro­tect­ing mem­bers’ nar­row­ly con­ceived eco­nom­ic inter­ests and shap­ing the orga­ni­za­tion to func­tion like a busi­ness, unions con­struct a very lim­it­ed role for the work­ers they rep­re­sent. Under this sta­tus quo, mem­bers are gen­er­al­ly con­sid­ered pas­sive, with lim­it­ed author­i­ty and voice. Their sole pow­er” is to pay dues and cast votes in what are gen­er­al­ly uncon­test­ed elec­tions for officers.

The right-wing forces behind Janus have used their fright­en­ing­ly vast finan­cial resources to exploit this weak­ness. The Janus brief, filed by the Nation­al Right to Work Foun­da­tion on behalf of Illi­nois pub­lic employ­ee Mark Janus, artic­u­lates anti-union argu­ments famil­iar to any union activist who has tried to recruit skep­ti­cal co-work­ers. The plaintiff’s claims inter­ro­gate AFSCME’s pur­pos­es, its pres­ence as a polit­i­cal force and whether it serves as a col­lec­tive voice for work­ing peo­ple on the job and in the larg­er society.

The brief reads:

Janus objects to many of the pub­lic-pol­i­cy posi­tions that AFSCME advo­cates, includ­ing the posi­tions that AFSCME advo­cates for in col­lec­tive bar­gain­ing. For exam­ple, he does not agree with what he views as the union’s one-sided pol­i­tick­ing for only its point of view. Janus also believes that AFSCME’s behav­ior in bar­gain­ing does not appre­ci­ate the cur­rent fis­cal crises in Illi­nois and does not reflect his best inter­ests or the inter­ests of Illi­nois citizens.


In build­ing sup­port for Janus, the Right has ques­tioned the mean­ing of union mem­ber­ship while also crit­i­ciz­ing pub­lic employ­ee unions’ engage­ment in pol­i­tics. Unions have fre­quent­ly been inef­fec­tive in respond­ing to the charge that they are just anoth­er spe­cial inter­est group, buy­ing politi­cians for their mem­bers’ ben­e­fit. Unions have dis­armed them­selves in this assault by adopt­ing the men­tal­i­ty and tac­tics of spe­cial inter­ests. Labor has by and large accept­ed the Right’s def­i­n­i­tion of the con­test (win­ning over friend­ly” politi­cians in either par­ty), the weapons (cam­paign dona­tions), and the oppo­nents (work­ers in oth­er coun­tries as our com­peti­tors). In doing so, labor has turned its back on its unique and most pow­er­ful resource — an informed, empow­ered and mobi­lized membership.

Instead, labor has coun­tered the Right’s argu­ments on nar­row grounds, rail­ing against free rid­ers,” who they say will require unions to rep­re­sent non-mem­bers, who would be pay­ing noth­ing at all, pass­ing that bur­den off to dues-pay­ing members.”

But this argu­ment has lit­tle res­o­nance to work­ers who already feel they are not well-rep­re­sent­ed. Like Mark Janus, they don’t feel their voic­es count. The union” exists apart from them, with staff and offi­cials insu­lat­ed from even hear­ing, let alone respond­ing to, mem­bers’ opin­ions and needs. The eco­nom­ic pay­off from union dues can be hard to see when your pay­check hasn’t increased or in some cas­es, has decreased, despite your union hav­ing bar­gained in your name.

And this argu­ment also avoids address­ing the larg­er case made by the Right: that join­ing a union is not in work­ers’ best inter­est. The Right has con­fused work­ers by sell­ing an indi­vid­u­al­is­tic, com­pet­i­tive ide­ol­o­gy. And unions have been too slow to address why this ide­ol­o­gy is harm­ful and anti­thet­i­cal to prin­ci­ples of col­lec­tive action and sol­i­dar­i­ty. As oth­ers have observed, orga­nized labor has by and large for­got­ten the gram­mar and vocab­u­lary of class strug­gle.

From it” to we”

Though we shouldn’t adopt their meth­ods or men­tal­i­ty, labor can learn a great deal from the Right’s vic­to­ries. To move from defense to offense, labor needs to devel­op a new mind­set. The strate­gies being dis­cussed to avoid dis­as­ter post-Janus reflect many unions’ unwill­ing­ness to reimag­ine themselves.

One of these strate­gies is to eschew the legal respon­si­bil­i­ty to be exclu­sive rep­re­sen­ta­tive” of the bar­gain­ing unit, there­by cre­at­ing com­pe­ti­tion between unions. Mul­ti­ple unions rep­re­sent­ing work­ers for a sin­gle employ­er is the norm in oth­er coun­tries, where unions are allied with polit­i­cal par­ties. And some might con­sid­er it an idea worth pur­su­ing. But encour­ag­ing com­pe­ti­tion among unions is a dis­as­ter, as Chris Brooks demon­strates in a close study of what occurred in Ten­nessee when an NEA affil­i­ate lost exclu­sive rep­re­sen­ta­tion. Work­ers turn against one anoth­er, view­ing one anoth­er as rivals. Com­pa­ny unions, mas­querad­ing as pro­fes­sion­al groups that offer low insur­ance rates, com­pete, suc­cess­ful­ly, against tra­di­tion­al unions.

Is a Work­ers’ Bill of Rights” an answer to Janus and the antic­i­pat­ed loss of col­lec­tive bar­gain­ing in more states, as has been pro­posed in this pub­li­ca­tion? This is an inter­est­ing strat­e­gy but its lim­i­ta­tion is that it’s a legal­is­tic solu­tion, not a polit­i­cal one. It doesn’t speak to the rea­sons work­ers choose not to join unions when they have that right, or to why they vote them down in elections.

Fur­ther, as Nel­son Licht­en­stein points out, the rights dis­course” is lim­it­ed by being indi­vid­ual. What makes unions unique is that they rep­re­sent mem­bers’ indi­vid­ual inter­ests through strug­gle for their col­lec­tive inter­ests. More­over, such a bill of rights ignores social oppres­sion that work­ers expe­ri­ence on the job and sep­a­rates their lives and rights out­side the work­place from those they have inside. This strategy’s major flaw is not in what it tries to do but that it sub­sti­tute for labor’s abil­i­ty to crit­i­cal­ly ana­lyze its losses.

One way to under­stand what adopt­ing a new mind­set would mean is look­ing to what occurred when the Cau­cus of Rank and File Edu­ca­tors (CORE), the reform cau­cus of the Chica­go Teach­ers Union (CTU), won the union’s lead­er­ship. This cau­cus con­ceived of the CTU as a mem­ber-dri­ven union that served mem­bers’ eco­nom­ic inter­ests best when it sup­port­ed social jus­tice issues across the board. The new­ly elect­ed lead­er­ship altered the way the union made its pur­pose evi­dent and worked to make all the union’s oper­a­tions sup­port this new mindset.

CORE put the peo­ple it rep­re­sent­ed, employ­ees of the Chica­go Pub­lic Schools, at the cen­ter of its orga­niz­ing, as Jane McAlevey puts it. A mem­ber-dri­ven union gives peo­ple a rea­son to be union mem­bers and not agency fee pay­ers. The goal? Shift the union from being an it” to being we.”

Democ­ra­cy or bust

Putting work­ers at the cen­ter of orga­niz­ing requires union democ­ra­cy. It also demands mov­ing towards inter­na­tion­al sol­i­dar­i­ty. What Kim Moody calls labor nation­al­ism” has weak­ened the unions by allow­ing work­ers to fall prey to Trump’s xeno­pho­bia. “’Buy Amer­i­can” is very close to Make Amer­i­ca Great Again.” Such slo­gans lead work­ers to become hos­tile to their coun­ter­parts in oth­er coun­tries rather than to the transna­tion­al cor­po­ra­tions and elites that set eco­nom­ic policy.

Over­com­ing the fall­out from Janus will require reimag­in­ing union mem­ber­ship by invert­ing hier­ar­chi­cal rela­tions that repli­cate dis­em­pow­er­ment on the job. To do this, unions need to grap­ple with a num­ber of press­ing questions:

Why have pro­fes­sion­al nego­tia­tors or paid staff sent to the bar­gain­ing table by nation­al- or state-lev­el unions rather than mem­bers who have been elect­ed based on their lead­er­ship and ideas? Should union orga­niz­ers be elect­ed rather than being hired and appoint­ed? Why aren’t mem­bers allowed to know how their rep­re­sen­ta­tives vote in the unions’ exec­u­tive coun­cil meet­ings? Should endorse­ments for polit­i­cal office be made by the mem­ber­ship in a ref­er­en­dum? Should unions use par­tic­i­pa­to­ry bud­get­ing” to have mem­bers decide pri­or­i­ties for where their dues are allo­cat­ed? What is a member’s respon­si­bil­i­ty for recruit­ing and edu­cat­ing co-work­ers about the union?

Activists who have tried to recruit co-work­ers to their union know that chang­ing people’s minds about join­ing can be slow and hard work. It requires lis­ten­ing and a deep com­mit­ment to union ideals because peo­ple often hold beliefs that are inim­i­cal to col­lec­tive action. This work also requires hav­ing a union you trust will make a dif­fer­ence in the lives of its mem­bers. Like democ­ra­cy any­where, union democ­ra­cy is dif­fi­cult to obtain and frag­ile. It can be inef­fi­cient and it cre­ates ten­sions. But it’s also the key to union pow­er. Vibrant democ­ra­cy and a mobi­lized mem­ber­ship are cru­cial to win­ning at the bar­gain­ing table and to enforc­ing any agree­ment in the work­place. Like all legal rights, the con­tract is only as strong as mem­bers’ knowl­edge of its pro­vi­sions and will­ing­ness to pro­tect it.

This is a moment of truth for unions and their sup­port­ers. We need to look in the mir­ror and see that Janus has two faces. The case could reduce orga­nized labor to a shell, or it could be the start of a remark­able revi­tal­iza­tion that draws strength from the wide­spread social move­ments that have emerged from both the Bernie Sanders cam­paign and Trump’s elec­tion. The lat­ter is pos­si­ble, but it will be up to all of us to make it a reality.

Lois Wein­er is the author The Future of Our Schools: Teach­ers Unions and Social Jus­tice (Hay­mar­ket, 2012). An inde­pen­dent researcher and con­sul­tant, she writes wide­ly on edu­ca­tion and teach­ers unions.

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