The name of the Supreme Court case that now poses an existential threat to organized labor seems fitting: Janus v. AFSCME. In ancient Rome, Janus was the god of passages and doorways, endings, and beginnings. Traditionally depicted as having two faces, one that looked back to the past and another that looked ahead to the future, Janus was the god of turning points and transitions. Now a case that bears this name threatens to mark a watershed for organized labor, undercutting its finances and weakening its presence in the one area of the economy where it has maintained the most strength over the past generation: the public sector.
In this case, an Illinois state employee named Mark Janus is arguing that a state law that lets the American Federation of State, County, and Municipal Employees (AFSCME), the union that represents him, deduct an “agency fee” from his paycheck to help cover the costs of its representation, infringes on his First Amendment rights. Although the union was voted in by a majority, and although it is required by law to bargain on his behalf and to represent him in grievance procedures even though he has not joined it as a member, Janus contends that the requirement that he help pay for that work is a form of coerced political speech.
If debate about a similar case two years ago is any indication, a majority of Supreme Court justices will likely side with Janus. Friedrichs v. California Teachers Association, which was argued in January 2016, posed the same question. Oral arguments in that case suggested that a majority was ready to overturn the 1977 precedent, Abood v. Detroit Board of Education, which first established the constitutionality of state laws that let unions collect agency fees from workers like Janus. Had Justice Antonin Scalia not died suddenly in February 2016, most observers agree that the Abood precedent would have fallen, 5-4. Scalia’s death instead deadlocked the court and left the precedent in place. Now that Neil Gorsuch has joined the court, however, the issue has been rejoined. Gorsuch’s history of pro-corporate rulings as a federal judge suggests that he will likely support Janus’s contention.
To gauge the potential impact of such a decision, consider what happened in Wisconsin in 2011 when Governor Scott Walker pushed through Act 10, which eliminated agency fees in that state. Union density was nearly halved within five years, paving the way for the enactment of a “right-to-work” law in the state in 2015. If the Supreme Court overturns Abood, we could see similar results in more than 20 states, including union strongholds such as New York and California. The loss of agency fees threatens to trigger an insidious free rider dynamic in which some workers avoid paying for the union’s representation thus weakening the union’s ability to defend the workers it represents, which in turn will discourage others from paying, perpetuating a destructive cycle that quickly undermines union strength.
Some labor advocates warn against overstating the Janus threat. Public sector unions experienced explosive growth in the 1960s and early 1970s, before jurisdictions allowed agency fee collection, they remind us. They also point out that Janus has awakened unions, leading them to reconnect with the workers they represent in ways that inspire workers to feel greater ownership of their organizations. Furthermore, they contend that the loss of agency fees poses less of a danger than the passage of state “paycheck protection” laws that would prevent governments from deducting union dues from the paychecks even of workers who do wish to pay—one feature of Wisconsin’s Act 10 which has yet to make much headway nationally.
Yet such reassurances should offer little consolation. While the emerging public-sector unions of the 1960s lacked the ability to collect agency fees, they had powerful labor allies, something missing today as private sector union membership rates hover at 6 percent, one-quarter of the figure a half-century ago. And while unions have done significant internal organizing in anticipation of Janus, it is impossible to predict how many workers will heed the siren call of anti-unionists and “vote themselves a raise” by becoming free riders, ceasing to pay either union dues or agency fees once the law allows it. Unions clearly fear this for they have already begun trimming payrolls in anticipation. Their cutbacks in turn might make it harder for them to defeat “paycheck protection” laws or efforts to curb collective bargaining altogether.
It is therefore crucial that unions do more than gird themselves against the anticipated financial blow the Supreme Court is now poised to deliver. They must recognize that Janus strikes at the very foundation of collective bargaining: the proposition that unions serve the common good by promoting the democratic governance of work relations. When public sector unions emerged in the postwar era, their proponents embraced arguments similar to those wielded by industrial workers under the National Labor Relations Act (NLRA) of 1935. They contended that unionization not only raised their living standards but helped preserve a vibrant political democracy by giving them a voice in the workplace. “The worker is going to make his voice heard,” AFL-CIO president George Meany told a conference of public employees in 1965, “the worker is going to make sure that there is democracy in the work places of America—no matter who the employer.” Arguments that public sector workers deserved such a voice once enjoyed significant bipartisan support. Indeed, the law that introduced agency fees in Mark Janus’s home state of Illinois was signed by a Republican governor, James Thompson. And it was an Eisenhower appointee, Justice Potter Stewart, who wrote the controlling opinion in Abood, which held that agency fees promoted union security and “labor peace.” But the Republican Party of Thompson and Stewart is no more, having been replaced by a stridently anti-union variant. Ideas once deemed extreme—including the contention that agency fees violate workers’ First Amendment rights—are today widely embraced by Republicans.
The disappearance of bipartisan support for collective bargaining signals the accelerating collapse of the legal, institutional, and ideological structures that once empowered workers to act collectively. It is no coincidence that even as the Supreme Court considers Janus, it has also taken up the consolidated cases of Epic Systems Corp. v. Lewis, Ernst & Young, LLP v. Morris, et al., and National Labor Relations Board v. Murphy Oil USA, Inc. These cases threaten to undermine private sector workers’ ability to engage in concerted activity by allowing their employers to force them to sign arbitration agreements abrogating their right to pursue class actions as a condition of employment. In conjunction with Janus, these cases indicate how advanced the decay of the old order has become.
In the face of this crumbling order, playing defense or adopting “fortress unionism,” as Rich Yeselson promoted four years ago in these pages, are no longer viable options. This moment demands that labor ambitiously rethink the goals, methods, and justifications of collective bargaining, recognizing that these legal cases are bringing to a head dynamics that have been undermining collective bargaining and fostering deepening inequality for decades.
Unions must address the changes in the global economy, the reorganization of work, the increasing influence of financial markets, and the evolving relationship between the public and private sectors that have set the stage for this perilous moment. Subcontracting, franchising, the extension of global supply chains, and the increasing influence of financial markets on the behavior of employers have made it harder for private sector workers to identify, let alone bargain directly with those who have the power to determine their wages and working conditions. Public-sector workers have not been immune to these trends. Today’s public sector works differently from how it worked when government workers began to gain bargaining rights in the 1960s. Now financial markets control access to public credit even as corporations play jurisdictions off against each other to win an ever-expanding array of tax exemptions, promote the privatization of public services (including schools and prisons), and press for austerity agendas that starve the public sector and lead in turn to more privatization. All too often public-sector workers are left to bargain with financially challenged employers who are hostage to these dynamics and who thus have little power to meet even their most modest demands.
Amid this crisis, unions cannot resuscitate twentieth-century styles of collective bargaining and they cannot rely on the law to save them. Like the mythic god Janus, they must grasp the transitional nature of this moment, looking back to identify the forces that led us to this juncture and looking ahead to deploy collective action in ways that tame those forces.
Fortunately, some public-sector unions have begun to do this by embracing an approach they call Bargaining for the Common Good. They seek to redefine collective bargaining for the twenty-first century by expanding both the bargaining table and the range of demands addressed at that table. Saint Paul teachers have demanded that their school district cease doing business with banks that foreclose on families with school age children; Oregon state university employees have demanded that all contractors hired by the university pay a living wage of at least $15 per hour; Chicago teachers have demanded that their school district cooperate with the union in seeking school funding through a tax on financial transactions, a progressive state income tax, or the return of Tax Increment Financing (TIF) dollars to the district; and, after learning that their city paid more in fees to Wall Street firms than it spent on maintaining city streets, Los Angeles municipal workers demanded that their city bargain with Wall Street for a better deal. These unions have formed alliances with community organizations, devised bargaining demands that address their allies’ concerns, insisted that these allies be present at the table, and used the bargaining process to identify and pressure the private sector forces that are driving privatization, tax avoidance, and austerity agendas.
Like the industrial unions of the 1930s, the unions pursuing Bargaining for the Common Good strategies have portrayed their efforts as fights to democratize institutions dominated by an anti-democratic financial elite. They have also embraced militancy when it helped them advance their cause. In doing so, they have broken out of dynamics that pit public sector unions against taxpayers, and transformed their unions into vehicles better able to advance the common good, linking up where possible with private sector workers’ struggles such as the Fight for $15.
Despite its promise, however, Bargaining for the Common Good has spread slowly, in part because public sector bargaining has traditionally been a locally controlled arena of union activity, largely impervious to top-down directives. To date, the extent to which unions have embraced the common good approach has depended on local variables. Yet an adverse decision in the Janus case might well change that. If the Supreme Court strikes a blow at union security, local unions in every jurisdiction will gain nothing by holding on to the dated approaches of the past. A brave new world will have arrived to which unions will have to quickly adapt lest they suffer complete marginalization. All of us who fear for the future of democracy in this age of deepening inequality have an interest in seeing unions avoid that fate.