A highly politicized conservative Supreme Court majority in Janus v. AFSCME Illinois has fulfilled the goal of wealthy corporate interests and struck a blow against government workers’ collective interest in fair and productive working conditions.
In a 5-4 decision, the court found that collectively bargained “fair share” fees in the public sector are unconstitutional. The outcome of this action may reduce public sector union membership nationally by more than 700,000, annually cost workers $1,800 in earnings and shrink gross domestic product by $33 million.
So what happens now?
Here are three ways that unions are attempting to convert retrenchment into renewal:
First, unions are having a genuine internal conversation on what union membership demands. Each of the public-sector unions directly in the line of Janus’ fire has held one-on-one meetings with their membership. This mission involves a commitment to constantly reach out to the rank-and-file and cease relying on the union security clause to maintain a level of stability. The objective is to build sustainable workplace labor organizations that are not creatures of political machinations or judicial interpretations. This is old school labor organizing.
Second, in perhaps a harbinger of things to come from states where labor has some political influence, New York recently amended its state public employee’s law. It allows public employee unions to deny representation to non-members in any disciplinary cases as well as any legal, economic or job-related services beyond those provided in the collective bargaining agreement, without violating the duty to fair representation. The Court majority opinion endorsed this approach by stating that individual “nonmembers could be required to pay for the [grievance] service or could be denied union representation altogether.” In a footnote, Alito cited a California labor relations law as an example. Other states including Oregon, Hawaii, New Jersey and Florida have passed or are considering post-Janus measures. Illinois could do the same.
Unions have even contemplated the existence of a contrarian legal opportunity embedded in the deeper implications of the Janus ruling. If, as the Court declares, compelling non-members to pay agency fees to public employee unions violates the First Amendment, then what would justify suppressing the union members’ actions to exercise their First Amendment rights to petition for grievances, peacefully assemble, critique their government employers, withhold their labor and bargain without restriction all matters relevant to their working conditions? Certainly, free speech rights hold for both nonmembers as well as members.
Third, it is not coincidental that the legislative and legal challenges to public employee unionism have coincided with an equally draconian diminishment of public services. As a result, revenue has drained from public budgets, leading to devastating government cuts to services, underfunding of education, surging inequality and the scapegoating of public sector workers.
In this environment, the very substance of bargaining in the public sector has to be re-conceptualized. Instead of a union bargaining as merely an economic agent for the financial good of its members, it must reorient contract negotiations around the public interest, with the union bargaining on behalf of the community and fighting for the services it needs. Unlike conventional transactional labor-management relations, the bargaining demands are broad and inclusive. Most importantly, unions are able to transform the aim of bargaining into advocacy for the common good.
And the need to forge community alliances is paramount. What I fear is that the there is a systematic effort to wipe clean our national memory of the benefits of unionism and collective bargaining. When the facts about labor and its undeniable profound role in building the middle class becomes fiction and vice versa, we make it harder to remember a past when collective action produced prosperity.
Janus may shrink the resources available to effectuate public sector collective bargaining, but it cannot prevent citizens and workers from finding a common voice. Contrarily, the decision is a powerful inducement to give fresh meaning to a clichéd belief that “an injury to one is an injury to all.”
Robert Bruno is a professor in the School of Labor and Employment Relations at the University of Illinois Urbana-Champaign.
DISCLOSURE: Some unions have ownership stakes in Sun-Times Media, including the Chicago Federation of Labor; Operating Engineers Local 150; SEIU Healthcare Illinois-Indiana and SEIU Local 1.