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Thursday, May 3, 2018 12:14 am

Janus case could backfire, helping unions

Prof. Bruno spoke recently with University of Illinois News Bureau business and law editor Phil Ciciora about a potentially crippling case for labor unions at the Supreme Court.

Most Supreme Court watchers are predicting that a majority of justices will side with the petitioner – Mark Janus, a child support specialist for the Illinois Department of Healthcare and Family Services – against labor in Janus v. American Federation of State, County, and Municipal Employees, Council 31. What’s at stake for labor?

The conventional wisdom is that the petitioner will prevail on a 5-4 vote. It appears from the questioning during oral argument that there were a majority of justices who would vote to overturn the 1977 decision in Abood v. Detroit Board of Education and wipe out the fair share provision. These are the fees that unions charge nonmembers to cover their “fair share” of costs associated with the union’s nonpolitical work representing all workers in providing negotiated benefits and grievance processing.

The fee is an instrument to prevent nonmembers from “free riding” on the efforts of dues-paying union members to win better working conditions for all workers. Under Abood, unions must represent all workers, whether they’re union or not. The court unanimously recognized the union’s and the government’s legitimate interest in preventing workers from benefiting from a union contract while paying nothing.

Some have speculated that perhaps Chief Justice Roberts is such an institutionalist with a high regard for precedent that he would be reluctant to lend his support to overturning a 40-year-old decision that has worked quite well. But if you’re going by the tenor of the questions during oral argument, Roberts appears to be ready to overturn the decision in Abood.

Clearly, the Janus case is a threat to organized labor and its ability to be a relevant workplace force and to function in the public sector. If the court sided with the petitioner, it could bring about truly radical change the likes of which labor hasn’t seen since the Taft-Hartley Act of 1947.

While the Janus decision looms, teachers in several states – Kentucky, Oklahoma and West Virginia – haves successfully organized walkouts and protests. What far-reaching effects will that movement likely have?
It’s a turning point. Janus is a serious threat, but the actions of those teachers have been incredibly inspiring. It’s just not really clear that the two moments – the pending Janus decision and the red-state teacher walkouts – form a coherent whole.

The teachers who have decided that they need to fight back against the attacks on their profession have thus far focused on state capitals and in places where school districts are making decisions that they feel are bad for education. We haven’t really seen an upsurge of union members who are acting collectively and waging strikes since the last big wave of teacher strikes in the early 1980s. So we haven’t seen this level of collective resistance in decades.

Clearly, those teachers who are agitating for change also have shown the value of acting collectively. It definitely helps feed the narrative of how teachers and, in the case of Janus, other public employees, need to stick together.

Would an adverse decision in Janus have the potential to blunt the teachers movement’s momentum?
The majority of the teachers who are striking, lobbying, rallying and speaking out are not union members. They are functioning in right-to-work states, so that means they were not fair-share payers.

They’re already acting under the conditions that a post-Janus landscape would likely bring about. What that might suggest is that Janus could backfire. There could be an unintended set of consequences, which would cause workers to understand that there’s a need for collective representation. Rallying and marching are necessary, but at some point, workers will need a stable institutional force that can represent them. If a teacher wasn’t in the union before Janus, they might begin to reconsider that decision – because once the legislative session ends, who else would represent your and your co-workers’ interests? This moment has signaled to nonunion teachers that perhaps they have common cause with the unionized teacher, and they might be more receptive to needing representation.

Robert Bruno is a professor of labor and employment relations at the Urbana campus of the University of Illinois and the director of the Labor Education Program in Chicago.

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