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February 16, 2018 | NORTHWEST LABOR PRESS
...‘Right-to-work’ nation? Getting ready for Janus v AFSCME
From Page 1
One of his first acts in office was
an executive order halting the
collection of the fair share fees.
In hopes of making that order le-
gal, Rauner also filed suit in fed-
eral court arguing that the fair
share requirement was unconsti-
tutional. The judge ruled that
Rauner had no standing to sue
since he personally was not a
union-represented worker — but
the judge allowed the case to
move forward by agreeing to re-
move Rauner as plaintiff and re-
placing him with an Illinois child
support enforcement specialist
named Mark Janus.
As an employee of the Illinois
Department of Healthcare and
Family Services, Janus is repre-
sented by AFSCME Council 31.
Janus, who makes $71,000 a
year under the union contract,
objects to paying $45 a month to
the union — because it takes po-
litical positions he doesn’t sup-
port, including advocating more
spending on state programs, and
higher taxes to pay for it.
But this isn’t the story of one
man’s courageous fight against
“compulsory unionism.” Janus is
merely a vehicle for a network of
anti-union legal nonprofits that
have been working to give a 5-4
conservative Court majority a
chance to deal a body blow to
their hated political adversary:
the labor movement.
Since the Supreme Court
agreed last July to hear the Janus
case, hundreds of organizations
and prominent individuals have
filed or signed onto 75 “amicus
briefs” in the case. The briefs
give a preview of the arguments
the Court is likely to hear.
The National Right to Work
Legal Defense Foundation will
argue that the case is about free
speech. But if Janus were about
free speech, you’d expect the na-
tion’s foremost defender of free
speech to support it. Not so: The
American Civil Liberties Union
Taking sides
As the labor movement gets ready for its
“day in court,” it’s backed by 39 amicus
briefs from church groups and a broad
cross-section of civil society groups, all
asking the Court to reject Janus.
Meanwhile, all but two of the 36 anti-
union amicus briefs come from the same
mostly-obscure network of anti-union
think tanks and legal foundations funded
by the Koch brothers and their ilk.
MAN IN BLACK: It’s no accident the Supreme Court is considering Janus
v AFSCME. Unlike other courts, it chooses which cases it wants to hear. In
a way, Janus originated in 2012, when Supreme Court Justice Samuel Alito
wrote the majority opinion in Knox v. SEIU, a case about refunds for work-
ers who don’t want to pay for union political spending. Alito questioned
the constitutionality of the Supreme Court’s 1977 Abood decision, which
says it’s okay to require public employees to pay their fair share for union
representation. His words tipped off anti-union lawyers that they could
challenge Abood. In Harris vs. Quinn in 2014, they challenged fair share
payments for home care workers in Illinois, but a 5-4 majority decided
only that the workers weren’t true state employees. The next attempt was
Friedrichs v California Teachers Association, which sped through the court
system but deadlocked 4-4 after Antonin Scalia died in 2016. With Trump
appointee Neil Gorsuch confirmed in 2017, a 5-4 conservative majority
was restored. Alito may get his wish.
(ACLU) argued in an amicus
brief that employee free speech
is already protected under Abood
because nonmembers don’t have
to pay any union expenses for
political speech. To rule that they
can’t be obliged to pay for repre-
sentation either would trample
on another First Amendment
right — freedom of association
— because it would force union
members to pay for nonmember
services, the ACLU said: “Even
employees who favor the union’s
positions or any benefits it con-
veys will have every incentive to
shift the costs of their represen-
tation to members, as they will
be able reap the same benefits
without spending a dime. As the
Internet has repeatedly shown,
individuals who get something
for free cannot be counted on to
voluntarily pay for it.” In other
words, Janus isn’t about free
speech; it’s about free riders.
Land of the free riders?
Imagine. You pull up to the gas
pump, and get a choice: pay the
sticker price, or skip out on pay-
ing the gas taxes and receive a 49
cent per gallon discount. And if
you choose not to pay the gas
taxes, you can still drive on the
roads paid for by the taxes that
other drivers paid. Economists
call this the “free rider” problem,
and it’s at the core of the Janus
case, because under the Ameri-
can system of labor law, demo-
cratically elected unions serve as
workers’ “exclusive representa-
tives,” and they have a legally
binding duty to represent all
workers in a bargaining unit,
whether or not those workers
choose to join the union.
Anti-union lawyers in the
Janus case have argued that one
way around the free rider prob-
“As the Internet has re-
peatedly shown, individ-
uals who get something
for free cannot be
counted on to voluntar-
ily pay for it.”
—American Civil Liberties Union
lem would be to eliminate exclu-
sive representation, and let dis-
senters fend for themselves. But
exclusive representation has been
a distinctive feature of American
labor law since the 1926 Railway
Labor Act, and it’s hard to see
how it would be practical for
state and local government em-
ployers to bargain separately
with rival unions in a single
workplace, or negotiate terms
and conditions with tens of thou-
sands of individual employees.
Some other key arguments
against overturning Abood:
Stare decisis Stare decisis is Latin for “stand by
things decided.” It’s a hugely important legal
PRO-UNION AMICUS BRIEFS
State attorneys general: Alaska, California, Connecticut,
Delaware, Hawaii, Iowa, Kentucky, Maine, Maryland,
Massachusetts, Minnesota, New Mexico, New Jersey, New York,
North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont,
Virginia, Washington, and the District of Columbia
Mayors: Los Angeles, Seattle, Chicago, New York, Philadelphia
Faith groups: United States Conference of Catholic Bishops,
National Council of the Churches of Christ in the USA, Union for
Reform Judaism, and dozens of others
Civil society groups: American Civil Liberties Union, National
Organization for Women, Southern Poverty Law Center, National
Urban League, American-Arab Anti-Discrimination Committee,
principle — the doctrine of precedent. If
the court reverses its Abood decision, it
invalidates 41 years of lower court decisions
that relied on the Abood precedent, and it
overturns laws in 23 states, affecting
thousands of union contracts that cover
millions of public employees.
Federalism Federal law is silent on whether
state and local public employees have any
collective-bargaining rights at all; it leaves
states to make that decision themselves.
That’s consistent with the Tenth
Amendment to the U.S. Constitution, which
says that the powers not delegated to the
federal government by the Constitution are
reserved to the states. Today, 41 states give
public employees at least some collective
bargaining rights, and 23 plus Washington
DC have a fair share requirement.
Consistency with other free speech
rulings The Supreme Court has long
balanced the individual free speech rights of
public employees against the prerogatives
of public employers to run the workplace,
and has given states wide latitude when
they impose restrictions as an employer. The
Court has held that government employers
can search employees’ desks without a
warrant, question them about their
backgrounds, require them to cut their hair,
even bar them from participating in political
campaigns after hours.
Money isn’t speech "This is not compelled
speech. It's a compelled payment of
money." That’s what a pair of prominent
conservative legal scholars argued in one
amicus brief. Seems obvious enough.
Follow the money
Janus needs to be understood in
a much larger context. When
Natural Resources Defense Council, Sierra Club, YWCA USA, Dēmos,
Public Citizen, NARAL, Center for Reproductive Rights, Human Rights
Campaign, Lambda Legal Defense Fund, National Center for Lesbian
Rights, National LGBTQ Task Force, PFLAG, National Center for
Transgender Equality, Union of Concerned Scientists, United Students
Against Sweatshops, Jobs With Justice
ANTI-UNION AMICUS BRIEFS
Trump Administration’s solicitor general
State attorneys general: Michigan, Alabama, Arizona,
Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana,
Missouri, Nebraska, Nevada, Oklahoma, South Carolina,
Tennessee, Texas, Utah, West Virginia, and Wisconsin.
public employee unions began to
win the legal right to engage in
collective bargaining 50 years
ago, union members were 40
percent of the private sector
workforce, and private sector
workers had greater pay and ben-
efits than public sector workers.
That was 50 years ago. Since
then, public sector unions grew
until they too represented about
40 percent of the public sector
workforce, and the public sector
caught up in wages and benefits.
But during that same period,
deregulation, offshoring, out-
sourcing and aggressive union-
busting by employers reduced
unions to 6 percent of the private
sector workforce. Today, the
public sector is in some ways the
last stronghold of real union
power: Maybe not enough power
to call the shots, but enough to
hang on a bit longer to the wages,
benefits and job security that
used to be the the standard — set
by private sector unions — for
every American worker. With the
labor movement in overall de-
cline, unions have turned increas-
ingly to the public and try to win
gains for workers through poli-
tics.
That’s why the list below of
who’s filing all the anti-union
amicus briefs is so telling: It’s a
who’s who of think tanks and
anti-union nonprofits funded by
a network of politically active
right wing billionaires led by the
Koch brothers. The same groups
contributed to the corporate-tax-
cutting Republican takeover of
Wisconsin, Michigan, and other
states. They’ve engineered this
moment, not because they care
about the rights of union dis-
senters but because they’re deter-
mined to remove unions as ob-
stacle to imposing a radical
corporate ideology.
After questioning lawyers for
both sides on Feb. 26, the
Supreme Court is expected to
make a decision in the Janus
case before its June recess.
Civil society group: National Federation of Independent
Business
Anti-union think tanks and legal foundations: 1851 Center
for Constitutional Law, American Center for Law & Justice, Atlantic
Legal Foundation, Becket Fund for Religious Liberty, Buckeye
Institute for Public Policy Solutions, Cato Institute, Center for
Constitutional Jurisprudence, Center on National Labor Policy,
Competitive Enterprise Institute, Empire Center for Public Policy,
Fairness Center, Freedom Foundation, Goldwater Institute, James
Madison Center for Free Speech, James Madison Institute,
Landmark Legal Foundation, Mackinac Center for Public Policy,
Pacific Legal Foundation, Pioneer Institute, Rutherford Institute,
Southeastern Legal Foundation