Janus Is Here—But Don’t Ring the Death Knell for the Labor Movement

Moshe Z. Marvit June 27, 2018

Over 30,000 members of New York City's Building Trades walked off their jobs, to rally outside of City Hall, calling for better safety legislation. (Photo by Michael Nigro/Pacific Press/LightRocket via Getty Images)

In a major deci­sion that will impact labor for decades, the U.S. Supreme Court has just declared that all pub­lic-sec­tor work­ers who are rep­re­sent­ed by a union have a Con­sti­tu­tion­al right to pay the union noth­ing for the representation.

The Court over­turned its land­mark 1977 deci­sion in Abood v. Detroit Board of Edu­ca­tion, which per­mit­ted pub­lic-sec­tor unions to charge fair-share fees that cov­ered the costs of pro­vid­ing col­lec­tive bar­gain­ing and con­tract admin­is­tra­tion to non-mem­bers that were rep­re­sent­ed by the union. Today, in Janus v. AFSCME, the Supreme Court has held that the First Amend­ment pro­hibits pub­lic employ­ee unions from charg­ing a manda­to­ry fee for the costs of rep­re­sen­ta­tion. There­fore, going for­ward, all pub­lic-sec­tor employ­ees will be under so-called right to work,” the union-bust­ing legal frame­work that denies unions the abil­i­ty to charge work­ers dues. In some ways, the deci­sion is worse than expect­ed. The rul­ing also makes union mem­ber­ship opt-in rather than opt-out. This will sig­nif­i­cant­ly increase the costs and bur­dens on labor. 

This deci­sion will direct­ly and indi­rect­ly impact how unions are struc­tured, how they engage with their mem­bers and objec­tors, how they orga­nize and edu­cate and how they are fund­ed. But this deci­sion will not destroy, defund or dec­i­mate labor.

First off, the Janus deci­sion will only direct­ly impact less than half of the labor move­ment. This is because the rul­ing only applies to pub­lic-sec­tor work­ers: fed­er­al, state and local gov­ern­ment employ­ees. How­ev­er, fed­er­al employ­ees (includ­ing postal employ­ees) have long been under so-called right to work,” so Janus will have min­i­mal direct impact on them. Fur­ther­more, many state and local pub­lic-sec­tor work­ers are already in right to work” states, so this rul­ing will have no effect on them. This is not to say that the whole labor move­ment will not be neg­a­tive­ly impact­ed by a decline in mem­ber­ship among pub­lic-sec­tor unions, but it is impor­tant to remem­ber that Janus will not place all union mem­bers under right to work.”

It is dif­fi­cult to pre­dict what effect Janus will have on union mem­ber­ship over­all. There is a good chance there will be at least some decline in mem­ber­ship, thanks to the free-rid­er prob­lem: the like­li­hood of some work­ers who are not opposed to the union choos­ing to pay noth­ing sim­ply because they can get some­thing for noth­ing. How­ev­er, state-lev­el data on the decline of union mem­ber­ship fol­low­ing the pas­sage of state right to work” laws is not nec­es­sar­i­ly a good pre­dic­tor of what will hap­pen after Janus, because most of the state laws are a mix­ture of anti-work­er laws that include right to work.” For exam­ple, in Wis­con­sin, union mem­ber­ship declined 38 per­cent between 2010 (the year pri­or to the pas­sage of Act 10) and 2016. How­ev­er, Act 10 con­tained a host of oth­er pro­vi­sions, such as the elim­i­na­tion of col­lec­tive bar­gain­ing for pub­lic-sec­tor workers.

Fol­low­ing Janus, unions will now have to fight for every union mem­ber to ensure they choose to remain mem­bers and pay their dues. Right-wing groups of the sort that brought Janus, Friedrichs and oth­er anti-union cas­es, will mount a nation­wide cam­paign to get mem­bers to quit the union. Many labor unions that have not been strong in engag­ing their mem­ber­ship will have to keep up a con­stant lev­el of con­tact and orga­ni­za­tion to main­tain their mem­ber­ships or risk los­ing big. They will have to make the case to mem­bers why they should stay with the union and pay dues, and they will have to make that case often.

Unions are con­sid­er­ing a num­ber of options for get­ting state laws changed, or chang­ing inter­nal pol­i­cy, to adjust to Janus. New York passed a law in antic­i­pa­tion of Janus, which oth­er states are con­sid­er­ing, that would allow unions to deny or charge for some ser­vices, such as griev­ance rep­re­sen­ta­tion. Some states are con­sid­er­ing laws that would require work­ers who are not mem­bers of the union to pay for rep­re­sen­ta­tion in griev­ance pro­ce­dures. This approach would have the ben­e­fit of dis­cour­ag­ing free-rid­er­ship by not pro­vid­ing the full ben­e­fits of mem­ber­ship to those work­ers who choose not to join. How­ev­er, it car­ries the dan­ger of turn­ing unions into pay-for-ser­vice orga­ni­za­tions that will find them­selves turn­ing away work­ers in their time of need.

Labor law pro­fes­sor Samuel Estre­ich­er has pro­posed an inter­est­ing approach that unions could take that would reduce the rate of pos­si­ble free-rid­ers, not require leg­is­la­tion, and not require unions to turn away non-pay­ing work­ers. Estre­ich­er argues that unions should require work­ers who choose not to pay their union dues to instead donate the mon­ey to a 501(c)(3) char­i­ty. Unions already per­mit reli­gious objec­tors to take this route, and Estre­ich­er sug­gests expand­ing the pro­gram to any objec­tors. Since this approach would require all work­ers to pay an amount equiv­a­lent to their dues — but would let them decide if the recip­i­ent was the union rep­re­sent­ing them or a char­i­ty — it would sep­a­rate the true objec­tors from the free-riders.

The allowance of fair-share fees, in both the pub­lic and pri­vate sec­tor, was in part intend­ed to pro­mote labor peace, and the impo­si­tion of right to work” may lead to more strikes and labor unrest. The mas­sive teacher strikes this year in West Vir­ginia, Ken­tucky, Okla­homa, Ari­zona, Col­orado and North Car­oli­na have all tak­en place in right to work” states, and this com­mon fact was like­ly no coin­ci­dence. Work­ers in right to work” states tend to have low­er salaries and few­er ben­e­fits. Mean­while, unions are weak­er, pos­si­bly because they serve as a mod­er­at­ing force to avoid direct — and often ille­gal — con­fronta­tion. These effects from right to work” can cre­ate an envi­ron­ment where work­ers’ frus­tra­tion grows, they have few options to bet­ter their sit­u­a­tions with­out direct action, and they orga­nize at a grass-roots lev­el. After Janus, with right to work” becom­ing the new rule for all pub­lic-sec­tor work­ers, there may be a break from a long peri­od of U.S. his­to­ry when strikes have been rare.

Moshe Z. Mar­vit is an attor­ney and fel­low with The Cen­tu­ry Foun­da­tion and the co-author (with Richard Kahlen­berg) of the book Why Labor Orga­niz­ing Should be a Civ­il Right.

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