In a decision that has been expected since Neil Gorsuch was confirmed as a justice, the Supreme Court’s judgment in Janus v. AFSCME on Wednesday, June 27 marks the biggest setback for workers’ rights in decades.
The 5–4 decision, which broke down along Republican- and Democratic-appointed justices on each side, could significantly reduce the amount of dues a union may collect. While this ruling affects only public sector unions, those unions play a disproportionately large role in the modern American labor landscape: public employees had a 34.4 percent unionization rate in 2017, compared to just 6.5 percent for private sector workers.
With a fundamental mechanism of modern organized labor undercut by this decision, unions—especially public sector unions—will need to innovate and organize to continue to benefit workers. Fortunately, unions and allied groups have been preparing for a world without fair-share fees since 2015, when a similar case, Friedrichs v. California Teachers Association, was accepted to be heard by the Supreme Court.
Here are four ways the labor movement can help minimize the negative impacts of the Janus decision:
1. Recommit to Serving Union Members
The Supreme Court’s ruling in Janus states that “free-rider” workers who previously paid a fair-share fee no longer have to pay that fee. The majority of workers in unionized workplaces are dues-paying members, however, and although the financial incentives will change without fair-share fees, unions can still demonstrate the value of membership to workers.
AFSCME president Lee Saunders touted the union’s election-style outreach to its own workers in 2017, saying, “AFSCME has made a commitment to getting back to organizing basics, building power at the grassroots level and hearing the unique concerns of every public service worker in one-on-one conversations.”
Other large public sector unions, like the Service Employees International Union and the American Federation of Teachers, are engaging in “internal organizing” efforts, reaching out to workers who “may have been paying agency fees for years and never had any contact with a union representative,” as reporter Lydia DePillis wrote in advance of the 2016 Friedrichs decision.
These efforts, while helpful in and of themselves, are especially necessary because of a concerted effort by the same anti-union advocates who brought Janus to convince union members to de-certify. The conservative Freedom Foundation has already trained and mobilized canvassers in California, Washington, and Oregon, and is reportedly planning a “flood” of advertising aimed at convincing unionized workers to stop paying membership fees. Unions’ internal organizing efforts are a necessary response to this kind of antagonistic ground game.
2. State and Local Legislation to Support Unions
While the current Supreme Court and Republican-controlled Congress are unlikely to make collective bargaining easier for workers, states can take action to make up some of the lost ground from the Janus decision.
In New York, for example, the legislature passed a bill in April that requires employers to provide notice within thirty days to the relevant union about an employee being hired, fired, or promoted, and to facilitate the process of collecting union dues electronically. The law also allows unions to refuse to provide services other than workforce-wide bargaining on behalf, like trainings or legal representation, to workers who are not dues-paying members.
A similar bill in New Jersey facilitates union access to workers during business hours, and penalizes businesses who encourage union members to stop paying union dues. Legislators in California included similar benefits for unions in the recent state budget. A group of twenty-three mayors (and counting) from across the country have signed a pledge to offer similar access, facilitation, and other benefits to municipal unions.
3. Non-Traditional Worker Organizing
Even as unions themselves have shrunk, new types of movements and organizations have thrived in the past decade. The broad-based Fight for $15, for example, is a union-funded political campaign that advocates for raising the minimum wage for all workers—unionized or not—to $15 per hour. The National Employment Law Project estimates that the movement won $61.5 billion in raises between 2012 and 2016.
Another growing source of worker power is worker centers, which don’t require a union membership in order to access services. Worker centers take a variety of forms, but are defined by their advocacy for and services offered to workers, and create community and solidarity among employees at different workplaces or those who are not eligible to join a union. As Danae Lopez wrote for The Century Foundation in 2016, “whether individuals are dealing with workplace challenges such as limited restroom access, unsafe warehouses, or ‘just-in-time’ scheduling, the connected communities fostered by worker centers are crucial and may be the only resource available to fight for certain workers.”
Furthermore, “alt-labor” groups have never had the funding stability that unions have, and so have had to innovate in building sustainable funding models as long as they have existed. As TCF senior fellow Shayna Strom highlighted in her report, “Organizing’s Business Model Problem,” organizations like the National Domestic Workers Alliance, Restaurant Opportunities Centers United (ROC-United), and Pineros y Campesinos Unidos del Noroeste (PCUN) have been successful by building sustained donation programs and offering services and benefits to members. Unions could draw upon success stories like these, in addition to continuing member dues, moving forward.
4. Structural Innovations in Labor Organizing
Unions can also make significant innovations within the NLRB-adjudicated membership model. Though the Janus ruling outlaws fair-share fees on a First Amendment basis, The Century Foundation’s Richard Kahlenberg and Moshe Marvit have advocated for expanding union rights under the Civil Rights Act, by protecting worker activity and making disciplining or firing an employee “on the basis of seeking union membership” illegal.
In addition to expanding the rights that workers have, organized labor has an opportunity to innovate how workers can access those rights. As TCF president Mark Zuckerman, along with Kahlenberg and Marvit, wrote in 2015, Americans are able to transfer money, call rides, and file taxes online, but the process of forming a union is still an analog, bureaucratic process. The time and resources that a union must invest in organizing a workplace limits organizing efforts to larger shops, hamstringing union efforts nationwide. An efficient online process, accessible to workers without hands-on union staff assistance, would make forming a union feasible for millions more Americans.
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