How the Janus Ruling Could Undercut Private-Sector Unions Too
By Alexia Elejalde-Ruiz
A Supreme Court ruling last month that said public sector workers can't be forced to pay fees to unions they don't want to join could squeeze overall union revenue, limiting organized labor's ability to champion a variety of progressive causes that affect private sector workplaces as well, some labor experts say.
Unions, and organizations funded by them, have driven a flurry of state and local legislation in recent years that has mandated minimum wage increases, paid sick time, parental leave and predictable scheduling for shift workers. Chicago instituted paid sick leave laws and is raising its minimum wage to $13 an hour in part because of union-funded campaigns.
Lisa Vickery, an attorney at Fisher Phillips who represents management in labor cases, believes a hit to union coffers could dampen those initiatives.
"I don't think we can underestimate the role that unions play in legislation, particularly in pushing ballot initiatives," Vickery said. "We are going to see a decrease in this political activity."
Money that unions funnel toward Democratic candidates who help get those laws passed also could dry up, said Cesar Rosado, co-director of the Institute for Law and the Workplace at Chicago-Kent College of Law.
"I think this is going to have a huge impact on funds for union activity overall and progressive causes," Rosado said.
Unions have relied on strong growth in their public sector ranks as private sector membership has dwindled. In Illinois, more than half of government workers are union members, compared with 10 percent of private sector workers, according to Unionstats.com. Nationwide, government workers make up nearly half of the unionized workforce even though they represent a less than 20 percent of the total workforce.
Last month's 5-4 ruling against the American Federation of State, County and Municipal Employees, the nation's largest public sector union, bars unions from collecting mandatory fees from government employees who don't want to join the union but still benefit from the contracts negotiated on their behalf.
The decision in Janus v. AFSCME, a case that originated in Illinois, is considered a massive blow to organized labor because employees may be disinclined to join unions if they don't have to pay anything to reap the contract benefits. Unions are required to represent all workers in the bargaining unit, including in expensive arbitration proceedings, regardless of whether they are members.
A loss of dues-paying government workers "threatens the larger capacity of the labor union to be effective for raising wages and benefits and moving policy," said Bob Bruno, labor professor at the University of Illinois at Urbana-Champaign. Bruno, in a study conducted with the Illinois Economic Policy Institute, estimates that the Janus ruling will decrease public sector union membership, in Illinois and nationally, by about 8 percent.
The Service Employees International Union -- which counts 2 million members, half of them public sector workers -- cut its budget by 30 percent in anticipation of the Supreme Court's decision, President Mary Kay Henry has said. The union is behind the Fight for $15 campaign to organize and raise the wages of fast-food workers and other private sector employees who traditionally have not been unionized.
But Henry minimized concerns that a funding dip would damage those workplace initiatives.
"SEIU members won't let this court case impact our campaigns to help working people -- white, black and brown -- join together in unions," Henry said in an emailed statement. "We're going to keep our foot on the gas -- we won't slow down until we turn millions of poverty-wage jobs into union jobs that pay enough to raise a family on."
Jeremy Glenn, an attorney at Cozen O'Connor who represents management in labor cases, believes unions will continue to invest in minimum wage and other legislative advocacy in order to demonstrate their value as they fight to keep members.
He also expects them to ramp up efforts to organize private sector employees in industries that traditionally have not been unionized to make up for a possible decline in public sector membership. They have been doing that for years to combat a general membership decline, making inroads in white-collar professions such as adjunct university professors and graduate student teaching assistants, as well as low-skill service jobs such as baggage handlers and cabin cleaners employed by private contractors at airports.
Still, Glenn expects the Janus ruling to result in a loss of revenue that will affect unions' staffing, and that could have an impact on private sector workplaces in other ways.
Unions may employ fewer business representatives who help members negotiate grievances, and as a result may focus on resolving grievances through settlements rather taking them to arbitration, he said. Or, he said, companies may see more employees representing themselves in arbitration, which could take longer and cost employers more.
Meanwhile, the Janus ruling could give momentum to efforts to abolish mandatory fees for private sector union members altogether.
Currently 28 states have adopted right-to-work legislation that says individuals can't be required to join labor unions or pay union dues. A national bill is pending in Congress.
"There will be pressure to give private sector employees (in the remaining 22 states) the same choice: the option to opt out of paying agency fees," Glenn said.
Private sector employees in unionized workplaces who don't want to be members currently have the right to file paperwork to become Beck objectors, which means they pay lower fees that go only to collective bargaining, contract administration and grievance adjustment. But typically the Beck objector fee is only about 15 percent less than full union dues, and for many people it isn't worth the hassle, Glenn said. The option to opt out entirely could be more enticing, he said.
Illinois, a union stronghold with an overwhelmingly Democratic legislature, is not expected to pass a state right-to-work law despite Republican Gov. Bruce Rauner's support. But if unions' diminished capacity to fund labor-friendly legislators reshapes the political composition of state governments, even historically blue states could swing toward adopting right-to-work legislation, Bruno said.
Some pro-labor advocates, including Bruno, worry that the Janus ruling could also help right-to-work activists bring a constitutional challenge to mandatory fees in private sector unions. But whether the Supreme Court's logic in outlawing fair-share fees in the public sector could be extended to the private sector is a matter of debate.
The fair-share fees required of employees who decline to join the union -- which in the Janus case were about $45 monthly, or 22 percent less than regular dues -- are meant to support only the union's collective bargaining activities and not its political initiatives. But Justice Samuel Alito's majority opinion said that all public sector bargaining is inherently political. Collecting fees from nonconsenting government employees, who are protected by the First Amendment, violates their free-speech rights, the court said.
Private sector employees don't have that same First Amendment protection in their employer relationships, and most legal analyses of the ruling said the court's reasoning wouldn't apply to them. But Chicago-Kent's Rosado disagrees.
Private sector employees are governed by the National Labor Relations Act, a federal law that requires employers to bargain with unions that employees have voted to represent them, and those unions may set mandatory fees and may lobby for all sorts of public causes, including government spending and minimum wage levels, that some employees may not agree with, he said.
"I don't see a big difference, therefore, between the First Amendment issue in the public and private sectors," Rosado said. "Therefore, I can totally see Janus getting extended to the private sector."
As a result, Rosado said, labor unions will have to try harder to get workers to pay fees voluntarily -- and that's not a bad thing, he said.
Unions are shifting strategy to demonstrate not only their value to their members, but to society at large, Bruno said.
"It's important the union be seen in the community as a champion of the community's interest, so that when they're bargaining it's not just for their members but for the common good," Bruno said. "More money in schools, more racial justice, more health care clinics on the South Side, you rally with public housing advocates and social justice advocates. And when you bargain you do so with those communities in mind."
At the regional chapter of SEIU Healthcare, which represents about 90,000 public and private sector health care workers in Illinois, Indiana, Missouri and Kansas, spokesman James Muhammed said bracing for numerous legal challenges to mandatory fees has made the union stronger. The union has ramped up communication about the benefits of membership and the importance of uniting to fight "the forces that are against organized labor," Muhammed said. Members are now more educated about the historic role unions played in setting basic worker standards, such as vacation days, he said.
SEIU Local 1 in Chicago -- which represents mostly private sector employees, including food service workers, janitors, window washers and security officers in six Midwestern states -- for several years has been engaged in an "intense effort" to get members to renew their membership, in anticipation of the Supreme Court acting on the fee issue as well as the proliferation of right-to-work laws now in place in most of the states it operates in, said spokeswoman Izabela Miltko-Ivkovich. The messaging is not only about the benefits of membership "but also understanding that economic justice cannot be attained without racial, environmental and immigrant justice," she said.
The local has renewed 92 percent of its members, she said, and it was able to keep membership steady even in its four right-to-work states (Michigan, Wisconsin, Indiana and Missouri).
"When there's a crisis, people come forward and unite in solidarity in a way that people don't when times are comfortable," said the Rev. C.J. Hawking, executive director of Arise Chicago, a nonprofit that advocates for the rights of low-wage, nonunionized private sector workers, such as domestic workers.
That renewed solidarity has consequences. As unions in the public and private sectors get more aggressive in rallying workers against a common enemy, it could cause more labor strife, Rosado said.
"The good part is that it generates this vibrancy, this militancy," Rosado said. "The downside is that it might make it harder for these unions to have any kind of working relationship with management."
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