Jacquelyn Martin / AP

A few hours before Justice Anthony Kennedy announced his retirement, the Supreme Court ruled on a case that could fundamentally change the future of the U.S. labor movement, Janus v. AFSCME. For over 50 years, public employees who opted out of union membership still had to pay fees to cover the costs of collective bargaining, unless their state legislature had ruled against it. In a 5-4 decision, the court ruled this requirement was unconstitutional, violating the free speech rights of those employees. In today’s issue, we look into what the ruling, somewhat buried by the Kennedy news, means for the health and power of U.S. labor.

—Caroline Kitchener

Janus v. AFSCME: A Masthead Primer

By Caroline Kitchener

Does this decision really deal a “crushing blow” to labor unions?

Not necessarily. Lily Eskelsen Garcia, president of the National Education Association, the country’s largest teachers union, estimates that the decision could cost the NEA 200,000 members and tens of millions of dollars. Robert Bruno, a labor professor at the University of Illinois at Urbana-Champaign, found that the Janus ruling could cause union membership to drop by as much as eight percent. But when I spoke to Bruno on the phone, he told me he thinks the Janus decision might actually be good news for unions. “As truly threatening as this ruling is, there are indications that it may present an opportunity,” he said. Over the past few decades, Bruno told me, many unions started to take their members for granted. They didn’t have to do much outreach, he said, because they knew very few members would choose to defect. Given that the fees were usually about two-thirds the cost of full membership, which comes with additional perks, members usually opted to pay full freight.

Several experts told me that Janus will force unions to re-engage their membership, to listen to the needs of their members, and to explain why the union is important. “It’s like exercise,” said Michael Merrill, a professor of labor at Rutgers. “We tend to put it off, because it’s not something we absolutely have to do, even though we know it’s good for us. Now, unions are going to be forced to go to the gym—and that’s going to make them stronger.”

As my colleague Alana Semuels reported last week, there’s evidence that this scenario has already started to play out. In the 2014 case Harris v. Quinn, when the Supreme Court ruled that requiring home health workers to pay union fees violates the First Amendment, the United Domestic Workers of America (UDW) responded by adopting new, specialized technology to reach as many workers as possible. Although it lost 20,000 members immediately after the ruling, UDW now has more members than it did before Harris.  

Have unions in the U.S. always automatically taken a cut of every public-sector paycheck?

No, they haven’t. “The labor movement was not built by a mandatory dues check-off,” Merrill told me. During World War II, to answer a growing need for weapons and other wartime materials, President Roosevelt struck a deal with union leaders. In exchange for a “no strike” guarantee, Roosevelt’s War Labor Board gave unions the right to automatically deduct dues from paychecks, whether or not the employees had signed up to be members.  

While other temporary worker benefits disappeared after the war, Merrill wrote in an email, “the automatic deduction of union dues from employee paychecks continued and, in fact, became standard across the unionized sector.” Congress subsequently granted state legislatures the power to decide whether or not all public-sector workers would be compelled to pay union fees. Before Janus, 28 states had passed “right to work” laws, allowing workers to decide whether or not to support their union.

How were U.S. unions faring before Janus?

The major boom in union membership occurred in the 1960s and 70s, after President Kennedy signed Executive Order 10988, granting federal employees the right to collective bargaining. Since then, union membership has increased, but more slowly. Over the past ten years, Merrill told me, “public-sector union membership and density has been relatively steady.” Today, about a third of the public sector is unionized.

Which public-sector employees had decided not to be union members before Janus? And how hard will it be now for unions to convince them to join?

Before Janus, in “fair share” states—where unions could collect dues from all public employees—the vast majority of them were members. Those who weren’t generally fell into one of four categories, said Bruno:

  1. Employees ideologically opposed to unions, or public-sector unions
  2. Employees who need to hear more before deciding to join
  3. Employees who haven’t gotten around to joining
  4. Employees who assume they’re already in the union

When unions renew their efforts to engage employees, Bruno said, those last three types will be relatively easy to persuade. He estimates that only ten percent of non-dues-paying employees are against their unions. The rest, he said, can likely be won over with better outreach.

It’s been 10 days since the Janus decision. Has there been a huge drop-off in union membership?

It doesn’t look like it. Dan Montgomery, president of the Illinois Federation of Teachers, a teachers union with over 100,000 members, told me that IFT has only lost a dozen members since the decision was announced.  Public-sector unions were generally prepared for this decision, Montgomery said, primed by a recent series of Supreme Court cases. “When Janus happened, we knew all the things we had to do, the switches we had to throw, the letters we had to send to our members,” he said. “We were ready.”  

How will union strategies change after Janus?

About a year ago, anticipating the Janus decision, the Illinois Federation of Teachers decided to issue a new union card to every member—an effort that Montgomery suggested was essentially an excuse to reconnect with each individual. He said that, post-Janus, IFT organizers will be relying more on face-to-face meetings, and less on email. “I always joke that we should remove the ‘reply all’ feature from email—because organizers will just forward the union email and think, ‘I did my union work.’ But that isn’t the same as conversations.’” Even if member numbers do fall in the wake of Janus, Bruno expects the ranks of union activists—people who believe strongly in the union case, and actively recruit new members—to swell. A larger activist base will strengthen the unions in the long-run, Bruno said.

Unions will also likely push for state legislation to make it easier to attract potential members. In California, union leaders are advocating for laws that would allow their members to recruit colleagues on the job, and keep union members’ contact information private, to prevent anti-union groups from getting in touch. Other unions are rallying to pass legislation that builds a meeting with the union into each new employee’s onboarding process. At the same time, union experts anticipate that labor leaders will have to defend against a new wave of conservative, anti-union legislation in the aftermath of Janus. “I’m afraid that Janus has opened up additional fronts in the war these groups are waging on public-sector unions and the labor movement more generally,” said Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School, in an interview with The Intercept. “We will see litigation for years.”

Unions in the post-Janus era will become better communicators, Montgomery told me, citing the Chicago Teachers Union (CTU) as an example. “Twenty years ago, if you asked people to describe CTU in a few words, they would have said, ‘contracts.’ But if you ask them today, they say things like, ‘fighting for the schools the kids deserve.’” That’s because of an effort to reach out to every teacher in the region—to go to their schools, and report back on the biggest issues, Montgomery said. “Union representatives can’t just be office holders waiting for someone to pick up the phone, or come in and order something,” he said. “We’re not a deli counter.”

Today’s Wrap Up

  • Today’s Question: Do you belong to a union? Are you a labor organizer? Or have you opted out of a union? We’d love to hear your thoughts on Janus v. AFSCME.

  • What’s Coming: On Wednesday, we’ll share our conversation with a historian who specializes in the U.S.-Mexico border.

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