By Chris Maisano
As the Supreme Court deliberates over Janus v. AFSCME, the contours of the likely post-Janus order are beginning to come into view.
The Janus case addresses the question of “agency fees” in public sector employment. In states where agency fees are legal, public employees do not necessarily have to join the union in their workplace. If they choose not to, however, they still must pay a fee to the union because they’re covered by the terms of the union contract. The plaintiff in the case claims that these fees are a form of forced speech, on the grounds that collective bargaining in the public sector is inherently political. In his view, therefore, agency fees violate the First Amendment and should be declared unconstitutional. A majority of the justices are likely to agree with him and impose a so-called “right to work” regime on public employment in every state.
Near the end of the oral argument, the union’s lawyer warned the court that a ruling against the union would “raise an untold specter of labor unrest across the country.” He made his point as the West Virginia teachers’ strike entered its second week and kept schools closed across the entire state.
Despite its traditional reputation as a union stronghold, West Virginia does not have a collective bargaining law for public employees, and teachers lack the legal right to strike. Despite these challenges, and in the face of significant pressure from union leaders and a Republican-dominated state government, teachers flouted the law and won a number of substantial victories beyond a five percent wage increase.
Against all expectations, West Virginia launched a strike wave that’s sweeping Republican-controlled states around the country. This week, teachers in Oklahoma and Kentucky descended on their state capitols to defend public education and press their economic demands, while in Arizona teachers are threatening to walk out if their audacious demand for a twenty percent pay raise is not met. The kindling that set this wildfire ablaze can be found throughout Republican-dominated states, where years of austerity have reduced public services to rubble and forced teachers to donate plasma or take on side jobs just to stay out of poverty. The fire shows no sign of burning out anytime soon.
There is another important commonality between all these states. West Virginia, Kentucky, Oklahoma, and Arizona are all right-to-work states where public sector unions are institutionally weak and politically isolated. Their respective membership rates are far below the national average, and their organizational capacities have largely been hollowed out. Unlike unions in other states, they are not particularly influential in state-level politics and cannot count on politicians to offer them meaningful legal and institutional guarantees.
It is this very weakness, however, that has made the kind of grassroots militancy sweeping these states both necessary and possible. In the absence of long-standing bargaining relationships and a stable union organization capable of disciplining the rank-and-file, disputes between public employees and their bosses can quickly escalate into the kinds of mass political mobilizations we’ve seen over the last two months.
In states with Scandinavian rates of public sector unionization, Democratic politicians and union leaders are doing everything they can to prevent this from happening, even if the court rules the way it is expected to.
After waging war on unions in his first term, New York Governor Andrew Cuomo has done his best to restyle himself as a pro-labor progressive in his second term. As he runs for a third term he is pulling out all the stops to curry favor with New York’s still-powerful unions, who are doing everything they can to mitigate the impact of Janus on their financial and organizational wherewithal. The 2019 state budget bill Cuomo just signed into law reflects this mutual interest by providing unions with some important concessions that could potentially spread to other states under Democratic Party control.
First, the budget bill amends state law to prevent bargaining unit employees from dropping their union membership at any time. Withdrawal of membership will now be restricted to a specific (and typically short) opt-out period prescribed in each union’s membership/dues deduction authorization card. Second, it gives union representatives access to new employees within thirty days of hire. Finally, it significantly modifies the duty of fair representation (DFR) for public employee unions in New York.
Under this last provision, non-members will still be covered by collective bargaining agreements, but unions will have the right not to provide representation to non-members in disciplinary hearings, grievances, and arbitration cases. While denying services to non-members might seem like an obviously sound proposition to many, this is likely to be a source of significant debate and controversy among union activists. The effects of modifying DFR along these lines remain to be seen. It would prevent non-members from free riding on the members’ dime, but risks undermining solidarity in the bargaining unit. By the same token, it could help to maintain membership levels and combat the commonly held image of unions as defenders of the bad apples in the workplace.
While the kinds of legal fixes featured in the New York budget would also be useful to unions in other states, they do not seem to be sustainable. Right-wing legal outfits have already filed challenges to restrictions on membership withdrawal, and considering the current legal environment they are likely to prevail. After Janus, national right-to-work could move from the public sector to the private sector, and anti-union forces are already probing the constitutionality of exclusive representation. Unions and Democratic politicians will continue to fight a rearguard action against this onslaught, but barring unforeseen reversals, a convergence of organizing conditions across the states seems all but certain.
Here’s where things could get really interesting: union security is the tradeoff for keeping labor peace in the public sector. This was part of the reasoning behind the Supreme Court’s 1977 decision to affirm the constitutionality of agency shops, which came on the heels of an unprecedented national public employee strike wave. Today’s strike wave has so far targeted Republican administrations in relatively rural areas, but cities and states run by Democrats have pursued their own attacks on teachers, public education, and the public sector more generally.
Teaching and learning conditions in big urban school districts are frequently abysmal. If those teachers get a notion to revolt in the post-Janus world, there may be little to prevent the AFSCME lawyer’s fervid prophecy from becoming reality.
Chris Maisano is member of the DSA National Political Committee, a contributing editor at Jacobin, and a union staffer in New York.