Janus v. AFSCME
“Right to work” moves to US Supreme Court
Linda Averill
volume 38
issue 4
August 2017

Sign carried during a pro-union demonstration at the Indiana Statehouse. Photo credit: NUVO

In this season of budget cuts and privatization, unionized public workers are finding themselves on the front lines of defending a vast array of endangered programs. Likewise, as unions in the private sector shrink, government unions are more important than ever in providing an organized champion of the working class.

These are two reasons the right wing has its guns trained on the American Federation of State, County and Municipal Employees (AFSCME), one of the largest U.S. public sector unions. This year, the National Right to Work Foundation is pushing Janus v. AFSCME, hoping to impose so-called “right to work” on all public unions.

The U.S. Supreme Court will decide whether to take Janus in late September. The justices probably will, and could rule by June 2018.

Trying to kill unions. Since the 1960s, public sector unionism has outpaced the private sector. Of 14.6 million unionists today, almost half are government workers, and their unionization rate is five times higher.

Making it easier for public unions to survive is the “agency” or “union shop” system. When a work site is unionized, labor law requires that all bargaining unit workers be represented. Because this is a financial burden, many states require all public employees to contribute money for the benefits they receive. Workers don’t have to join the union, but must pay an “agency” or “fair share” fee. Some states also allow union shops, where all bargaining unit members are in the union. Typically these shops are stronger and bargain better contracts.

The legality of the “agency shop” and “fair share fees” for public unions was upheld by the U.S. Supreme Court in the landmark ruling, Abood v. Detroit Board of Education, in 1977. Janus seeks to overturn Abood and impose the open shop on all public sector unions.

Many states have open shop laws already for the public and private sectors, and they are a means to bust unions. Under open shop for public unions, every worker is represented when a union becomes the bargaining agent for a work site, but no one is obliged to pay the union’s bargaining costs!

This divisive system encourages “free ridership.” Dues-paying members are set against those who don’t contribute. And since employers are free to reward or punish employees based on their views, membership typically declines.

Where unions perish, wages also fall. The Bureau of Labor Statistics reports the median weekly income in 2016 for non-union workers at $802, compared to $1,004 for those in unions.

Since the 1940s, open shops have ruled the U.S. South, creating a low-wage hell for workers. In the last decade, open shop laws have spread north, fueled by right-wing think tanks funded by corporate America. Proponents of Janus hope to push the open shop by pretending to defend the First Amendment rights of workers. The Right to Work Foundation suggests that unions deny workers “their right to bargain for themselves.” But most workers know individual negotiations with the boss go nowhere. Collective action is what gives them power.

In addition to the open shop, Janus supporters are in favor of rolling back minimum and prevailing wage laws, privatizing public education, eliminating pensions, gutting Medicare and more. It’s why these laws have earned the name “Right to Starve.”

Now in 28 states, most of these laws came on the books through anti-democratic methods. For example, Kentucky’s legislature rammed through its “right-to-work” bill as an “emergency” the first week of January 2017 — along with a law banning abortions after 20 weeks, and attacks on prevailing wage laws.

In Janus, the plaintiff is a child protective services worker from Illinois. But the lawsuit originated with Illinois Governor Bruce Rauner, who tried to bankrupt his state’s public unions by putting all workers’ “fair share fees” in escrow until a court could rule on his power grab. A court did rule that Rauner had no standing to take money that wasn’t his, and so Mark Janus became the plaintiff.

Organize to defeat Janus. Unlike private sector unions, which gained federal recognition under the 1935 National Labor Relations Act, public unions won legal standing in the 1960s through militant strikes. But the fortunes of public and private sector unions are tied. For example, in 2011 Wisconsin’s Governor Scott Walker used Act 10 to deny collective bargaining rights to public unions. This severely weakened labor in Illinois.

By 2015, Walker rammed the open shop onto private sector unions. Today, Wisconsin’s labor ranks have shrunk 70 percent. Clearly, public and private unions stand or fall together.

In preparing for Janus, many public unions are starting internal organizing campaigns to “stick with the union,” or join it. What is disturbingly lacking are plans to actually fight Janus. A search of the AFL-CIO’s website turns up nothing on the subject.

Some unions are passing resolutions to oppose the case, but so far there is no publicized plan to mobilize mass heat on the Supreme Court. Organized labor desperately needs a fighting strategy against Janus and the open shop on a national level.

Whether unions win or lose this round, the ranks must develop muscles for battles to come. The playing field is not level for unions under U.S. labor law, and as reactionary forces gain steam under Donald Trump, it will tilt against them even more. Labor leaders must give the ranks a reason to “stick with the union” — by taking the offensive against all the attacks coming down on the working class.

If public sector unions stand up, they won’t be alone. Millions of U.S. residents are feeling the pinch of austerity, and many are already rising to protest everything from Medicare cuts to government shutdowns. Organized labor is in a great position to coalesce with this beleaguered public. And if union heads won’t lead, the ranks must.

When the working class is fired up, unjust laws are knocked down. And bosses make concessions to secure the “labor peace” they need to make profits. Will this be easy? No. As Frederick Douglass said, “If there is no struggle, there is no progress.” This includes class struggle, so let the fightback begin!

• Defeat Janus and “Right to Work.”

• Stop the budget cuts.

• Build a united front against the capitalist austerity drive!

Send feedback to the author at Avlinda587@gmail.com.

Also see: Labor Weather Report