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Get Ready for Janus 2.0, Which Could Devastate Labor More Than the First

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On June 27, 2018, the Supreme Court issued its ruling in Janus v. AFSCME, which radically changed established constitutional interpretation to make it a violation of the First Amendment for public-sector unions to collect fair-share fees. These fees are equivalent to the portion of union dues that are germane to collective bargaining. The plaintiff in the case was Mark Janus, a child support specialist with the Illinois Department of Healthcare and Family Services, who objected to paying $23.48 in fair-share fees per pay period to AFSCME, the union that represented him and his coworkers. Backing Janus was a coterie of anti-union groups, headed by the National Right to Work Legal Defense Foundation, which has spent decades attacking labor. 

Despite this stinging loss before the Supreme Court, many unions had prepared for this possibility, and laid the groundwork to help mitigate the damages. The result was that—at least in the short term—the case that was intended to serve as a major body blow to labor appears to have had a rejuvenating effect.

For many, it seemed like the Janus case was over. Mark Janus, the lead plaintiff, had left his state job and went to work for the anti-union Liberty Justice Center, which helped represent Janus before the Supreme Court and whose entire “Workers’ Rights” platform consists of workers suing unions to recover fair-share fees. Janus was gone, fair-share fees in the public sector were gone, and unions became better at membership engagement such that they didn’t see the “free-rider” tidal wave that many had feared.

Now, Mark Janus is back before the Supreme Court, asking to make their 2018 decision retroactive, and force public sector unions to refund much of the fair-share fees they collected in recent years. If the Court agrees to hear the case and sides with Janus again, it could cost organized labor many millions of dollars.

Janus’s case is being brought under the Civil Rights Act of 1871—or “Section 1983” as it is more commonly called—which allows people to sue state actors for constitutional violations. The typical subject of such lawsuits includes such issues as excessive use of force by police, cruel and unusual punishment towards prisoners and violations of public employees’ First Amendment rights. In rare instances, usually when a private creditor uses state procedures to attach a debtor’s assets in violation of due process, a private actor can be found to be engaging in state action and sued under Section 1983 for violating constitutional rights. Therefore, AFSCME and other public sector unions could be sued for collecting fair-share fees under state law, which a 5-4 majority of the Supreme Court found in the 2018 Janus case was a violation of the First Amendment.

However, what makes this second Janus case truly bizarre is that the Supreme Court has stated, and every court has agreed, that there is a good-faith defense for private parties being sued under Section 1983.

Sheldon Nahmod, Emeritus Professor at Chicago-Kent College of Law and an expert on Section 1983, says that the good faith defense grew out of the simple “matter of public policy that private parties follow the law rather than act contrary to it.” With regard to public-sector fair-share fees, the union relied on a decades-old state law that was passed pursuant to a 1977 Supreme Court decision that treated fair-share fees as constitutional. Janus is arguing here that Justice Alito and several other conservative Justices voiced their discomfort with public-sector fair-share fees over the past few years, so unions should have been on notice that the law was problematic. But the Seventh Circuit Court of Appeals in this case rebuked this idea, stating, “The Rule of Law requires that parties abide by, and be able to rely on, what the law is, rather than what the readers of tea-leaves predict that it might be in the future.”

The trial court judge went even further, acknowledging the empty Supreme Court seat left by Sen. Mitch McConnell’s refusal to call a Senate vote for President Obama’s nominee Merrick Garland, stating, “had the general and/or presidential election resulted differently, the composition of the Supreme Court that decided the case may well have been different, leading to a different result.” If ever there was a case for arguing that a party acted in good faith in following the widely accepted law, this was it.

Another strange facet of Janus’s petition to the Supreme Court is that, though it claims to be attacking the good faith defense available to private parties under Section 1983, it does not cite any articles about the good faith defense. Instead, the only articles it cites concern the very different and problematic issue of qualified immunity, which is available to state actors.

Qualified immunity was created by the courts to protect public actors from liability unless they violated “clearly established” statutory or constitutional rights that a reasonable person would have known. However, over the years, the courts interpreted the doctrine so broadly that it has become extremely difficult to win a lawsuit against police for extreme misconduct.

A recent investigation by Reuters describes in grizzly detail how police killed a confused hospital patient with pneumonia who refused to return to his room, a man who suffered brain damage after being smashed to the ground by police, a bicyclist who was shot 17 times in a case of mistaken identity, and many more where qualified immunity protected unlawful action by police.

For years, there has been growing anger at the doctrine of qualified immunity because of the ways that it shields police officers, and since the murder of George Floyd by Minneapolis police, that drumbeat for reversal or reform of the doctrine has grown louder. Several Justices have called for a reexamination of qualified immunity and there are currently eight qualified immunity cases pending before the Court. A bill has been introduced by a broad bipartisan group in the House to eliminate qualified immunity. Now, it appears that Janus is trying to use the important issue of qualified immunity reform to get rid of the relatively rare good faith defense that unions are relying on.

On June 18, the Supreme Court is scheduled to consider whether it will accept the second Janus case for review. Labor law professor Charlotte Garden of the Seattle University School of Law says, “I don’t think there’s any reason for the Court to take this case. The lower courts have been unanimous in holding that there is a good faith defense. Absent a circuit split, the Court would typically take this case only if it presented an especially important question (such as the constitutionality of a major federal program)—and I just don’t see a question that rises to that level here.”

However, Justice Alito writing for the majority in the original Janus case, stated “It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment.” This sentiment was echoed by one of the judges on the 7th Circuit panel who heard this case. The conservative majority of Justices has shown that it is willing to accept cases where there is no split in the circuits and that it’s willing to overturn established precedent if the result is to harm labor.

Janus II may represent such a case. But, as Professor Garden stated concerning the “windfall” that unions are alleged to have received, “if we really wanted to unwind union agency fees, we’d also have to think about what represented workers got in exchange for their agency fees. Suppose Janus’s union (backed by agency fees) negotiated pay raises, or better insurance benefits, etc., and then enforced those contractual provisions through a grievance process. Assuming the union negotiated pay/benefits/etc. that were worth more than the amount of union dues, then, shouldn’t we say that by Janus’s logic, Janus received a windfall, or at least got the benefits he paid for with his agency fees?”

This blog originally appeared at In These Times on June 11, 2020. Reprinted with permission.

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.


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I Work with Mark Janus. Here’s How He Benefits from a Strong Union.

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Like everyone else in the labor movement, I’m nervously awaiting the Supreme Court ruling in Janus v. AFSCME Council 31, which would weaken public sector unions by letting workers receive the benefits of representation without contributing toward the cost.

But I’ve got a unique vantage point: I work in the same building as the plaintiff, Mark Janus.

We’re both child support specialists for the state of Illinois, where we do accounting on child support cases. I do this work because it’s fulfilling to help kids and single parents get the resources they need to support themselves.

What convinced Mr. Janus to join this destructive lawsuit? Your guess is as good as mine. I do know it’s much bigger than him. He’s the public face, but this case is backed by a network of billionaires and corporate front groups like the National Right-to-Work Foundation.

But the truth is, even Mark Janus himself benefits from union representation. Here are a few of the ways:

1. Without our union, Mr. Janus’s job would probably have been outsourced by now.

A drastic provision in the state’s “last, best, and final offer” in 2016 would have given Governor Rauner the right to outsource and privatize state employees’ jobs without accountability. Our union is all that’s preventing critical public services from being privatized.

Our agency would be at particular risk, because Illinois already has a longstanding contract with a scandal-ridden, for-profit corporation called Maximus to perform some of our agency’s functions. They modify child support orders and interact with employers about income withholding—pretty simple tasks, yet state employees regularly have to correct their work. If they were to take over more complex tasks, we can imagine how badly that would go! Their concern is for profit, not kids.

If the governor could get away with it, it’s very likely he would expand the Maximus contract to privatize jobs like mine and Mr. Janus’s. He already did something similar to nurses in the prison system. But our union has to be consulted before the state can outsource anything. And when they do outsource, we monitor the contract and discuss how long it will continue. I go to those meetings for our union. Right now, instead of letting management expand its deal with Maximus, we’ve been pressing to cut that contract.

2. Mr. Janus has received $17,000 in union-negotiated raises.

Over his years working for the state, Mr. Janus has earned general wage increases and steps that would not have been guaranteed if not for the union.

3. The public—including the parents and kids Mr. Janus serves—has access to resources like childcare that our union has fought to defend.

Our union allows us speak up together on matters far beyond money. When Governor Rauner tried to cut childcare benefits for low-income single parents, we teamed up with outraged community members and made him back off. And when the budget impasse was forcing domestic violence shelters to close their doors, we kept pushing for years until a veto-proof budget was passed.

4. Our union blocked the employer from doubling the cost of Mr. Janus’s health benefits.

 

In negotiations the state has pushed to double our health insurance costs and drastically reduce coverage. The employer declared impasse and walked away from the bargaining table. AFSCME took the matter to the Labor Relations Board and the courts—securing a temporary restraining order that prevents the governor from imposing his extreme demands.

5. We make sure Mr. Janus’s office is warm in the winter and cool in the summer.

As a union we deal with health safety issues large and small. In the department that rescues children from household abuse and neglect, we’re continually pushing for sufficient staffing. The stakes are high: one member was killed on the job after she went out on an urgent call alone.

Other matters are less dramatic. In state office buildings we solve problems like flooding, mold, leaky windows, and toxic pigeon feces. One building had someone creeping up on employees in the parking lot, so we worked with management to get better lighting and security patrols.

In the building where Mr. Janus and I work, the heating and cooling system is extremely old. Twice a year they bring in a computer from 1982 to switch from heat to air conditioning for the summer, and vice versa for the winter. So when the weather fluctuates, we work to get portable heating or cooling units deployed where they’re needed.

Many of these are ongoing issues, where our union acts as a watchdog. We have a health and safety chair on the union executive board. Any time a problem comes up, he starts by approaching management to resolve it. If that doesn’t work, he can file an OSHA complaint plus a high-level grievance.

6. Thanks to our union, Mr. Janus will retire with a pension.

Our union has fought to save the defined-pension that Mr. Janus will receive upon retirement. A coalition of unions including AFSCME took the issue to court—and won. The Illinois Supreme Court ruled that employees’ pension benefits cannot be cut.

7. Mr. Janus can get sick and still have a job when he comes back.

Before this job I worked without a union, in the retail industry, where I experienced what it means to be an at-will employee. Three absences would cost an employee their job—even if they called in sick and provided a doctor’s note.

8. Our union ensured that Mr. Janus could be fairly hired, regardless of his politics.

In public service our ultimate bosses are elected officials. There was a time in Illinois when to be hired or promoted, you were expected to make a contribution to the political party in power. But a 1990 Supreme Court case called Rutan v. Republican Party of Illinois put an end to that. Today our union enforces a triple-blind system for fair treatment in hiring and promotions, making sure seniority is followed. It’s one more way that even Mr. Janus benefits from having a union on the job.

This blog was originally published at Labor Notes and In These Times. Reprinted with permission.

About the Author: Donnie Killen is a child support specialist for the state of Illinois and vice president/executive steward of AFSCME Local 2600.


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How Business Unionism Got Us to Janus

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In September, the Supreme Court agreed to hear Janus vs. AFSCME, a case that has the potential to undermine public sector unions by curtailing unions’ right to charge non-members an “agency fee.” This fee covers the protection and services the union is obligated to provide all employees in the bargaining unit.

Many labor leaders and pundits have identified unions’ loss of revenue as the most dire consequence of an unfavorable ruling in the Janus case. Others have pointed out that the forces behind Janus don’t only aim to weaken public employee unions: they are seeking to destroy the public sector and public ownership of resources across the board.

However, the Right’s deeper, darker strategic purpose has been mostly ignored, even by unions: Janus fits in with a larger project, led by the State Policy Network—a network of right-wing think tanks—that aims not only to “defund and defang” unions but to “deliver the mortal blow to permanently break” the Left’s “stranglehold on our society.”

Anyone who cares about democracy and the social and economic well-being of workers has a stake in how unions will respond to the Court’s decision. And with Trump-appointee Neil Gorsuch now sitting on the bench, it appears likely that the ruling will not go in labor’s favor.

The real crisis at hand

The tacit assumption of Janus supporters and foes alike is that, when faced with a choice between being a union member and paying dues or not, significant numbers of members will bolt, and non-members who have been paying “agency fees” will not join. Because unions understand the danger posed by Janus as largely financial, they have focused on saving money, cutting staff and pursuing mergers. Some have also determined that they must be proactive to stave off mass desertions and are reaching out to members to solidify their support as dues payers.

Belt-tightening and talking to members may temporarily fortify union apparatus, but this approach ignores the question Janus demands we ask: Why is labor predicting members will desert their unions and that agency-fee payers will refuse to join?

These assumptions labor holds around Janus exemplify the real crisis unions confront—one not often discussed, even behind closed doors. In defining their purpose primarily as protecting members’ narrowly conceived economic interests and shaping the organization to function like a business, unions construct a very limited role for the workers they represent. Under this status quo, members are generally considered passive, with limited authority and voice. Their sole “power” is to pay dues and cast votes in what are generally uncontested elections for officers.

The right-wing forces behind Janus have used their frighteningly vast financial resources to exploit this weakness. The Janus brief, filed by the National Right to Work Foundation on behalf of Illinois public employee Mark Janus, articulates anti-union arguments familiar to any union activist who has tried to recruit skeptical co-workers. The plaintiff’s claims interrogate AFSCME’s purposes, its presence as a political force and whether it serves as a collective voice for working people on the job and in the larger society.

The brief reads:

Janus objects to many of the public-policy positions that AFSCME advocates, including the positions that AFSCME advocates for in collective bargaining. For example, he does not agree with what he views as the union’s one-sided politicking for only its point of view. Janus also believes that AFSCME’s behavior in bargaining does not appreciate the current fiscal crises in Illinois and does not reflect his best interests or the interests of Illinois citizens.

In building support for Janus, the Right has questioned the meaning of union membership while also criticizing public employee unions’ engagement in politics. Unions have frequently been ineffective in responding to the charge that they are just another special interest group, buying politicians for their members’ benefit. Unions have disarmed themselves in this assault by adopting the mentality and tactics of special interests. Labor has by and large accepted the Right’s definition of the contest (winning over “friendly” politicians in either party), the weapons (campaign donations), and the opponents (workers in other countries as our competitors). In doing so, labor has turned its back on its unique and most powerful resource—an informed, empowered and mobilized membership.

Instead, labor has countered the Right’s arguments on narrow grounds, railing against “free riders,” who they say will require unions “to represent non-members, who would be paying nothing at all, passing that burden off to dues-paying members.”

But this argument has little resonance to workers who already feel they are not well-represented. Like Mark Janus, they don’t feel their voices count. The “union” exists apart from them, with staff and officials insulated from even hearing, let alone responding to, members’ opinions and needs. The economic payoff from union dues can be hard to see when your paycheck hasn’t increased or in some cases, has decreased, despite your union having bargained in your name.

And this argument also avoids addressing the larger case made by the Right: that joining a union is not in workers’ best interest. The Right has confused workers by selling an individualistic, competitive ideology. And unions have been too slow to address why this ideology is harmful and antithetical to principles of collective action and solidarity. As others have observed, organized labor has by and large forgotten the grammar and vocabulary of class struggle.

From “it” to “we”

Though we shouldn’t adopt their methods or mentality, labor can learn a great deal from the Right’s victories. To move from defense to offense, labor needs to develop a new mindset. The strategies being discussed to avoid disaster post-Janus reflect many unions’ unwillingness to reimagine themselves.

One of these strategies is to eschew the legal responsibility to be “exclusive representative” of the bargaining unit, thereby creating competition between unions. Multiple unions representing workers for a single employer is the norm in other countries, where unions are allied with political parties. And some might consider it an idea worth pursuing. But encouraging competition among unions is a disaster, as Chris Brooks demonstrates in a close study of what occurred in Tennessee when an NEA affiliate lost exclusive representation. Workers turn against one another, viewing one another as rivals. Company unions, masquerading as professional groups that offer low insurance rates, compete, successfully, against traditional unions.

Is a “Workers’ Bill of Rights” an answer to Janus and the anticipated loss of collective bargaining in more states, as has been proposed in this publication? This is an interesting strategy but its limitation is that it’s a legalistic solution, not a political one. It doesn’t speak to the reasons workers choose not to join unions when they have that right, or to why they vote them down in elections.

Further, as Nelson Lichtenstein points out, the “rights discourse” is limited by being individual. What makes unions unique is that they represent members’ individual interests through struggle for their collective interests. Moreover, such a bill of rights ignores social oppression that workers experience on the job and separates their lives and rights outside the workplace from those they have inside. This strategy’s major flaw is not in what it tries to do but that it substitute for labor’s ability to critically analyze its losses.

One way to understand what adopting a new mindset would mean is looking to what occurred when the Caucus of Rank and File Educators (CORE), the reform caucus of the Chicago Teachers Union (CTU), won the union’s leadership. This caucus conceived of the CTU as a member-driven union that served members’ economic interests best when it supported social justice issues across the board. The newly elected leadership altered the way the union made its purpose evident and worked to make all the union’s operations support this new mindset.

CORE put the people it represented, employees of the Chicago Public Schools, at the center of its organizing, as Jane McAlevey puts it. A member-driven union gives people a reason to be union members and not agency fee payers. The goal? Shift the union from being an “it” to being “we.”

Democracy or bust

Putting workers at the center of organizing requires union democracy. It also demands moving towards international solidarity. What Kim Moody calls “labor nationalism” has weakened the unions by allowing workers to fall prey to Trump’s xenophobia. “’Buy American” is very close to “Make America Great Again.” Such slogans lead workers to become hostile to their counterparts in other countries rather than to the transnational corporations and elites that set economic policy.

Overcoming the fallout from Janus will require reimagining union membership by inverting hierarchical relations that replicate disempowerment on the job. To do this, unions need to grapple with a number of pressing questions:

Why have professional negotiators or paid staff sent to the bargaining table by national- or state-level unions rather than members who have been elected based on their leadership and ideas? Should union organizers be elected rather than being hired and appointed? Why aren’t members allowed to know how their representatives vote in the unions’ executive council meetings? Should endorsements for political office be made by the membership in a referendum? Should unions use “participatory budgeting” to have members decide priorities for where their dues are allocated? What is a member’s responsibility for recruiting and educating co-workers about the union?

Activists who have tried to recruit co-workers to their union know that changing people’s minds about joining can be slow and hard work. It requires listening and a deep commitment to union ideals because people often hold beliefs that are inimical to collective action. This work also requires having a union you trust will make a difference in the lives of its members. Like democracy anywhere, union democracy is difficult to obtain and fragile. It can be inefficient and it creates tensions. But it’s also the key to union power. Vibrant democracy and a mobilized membership are crucial to winning at the bargaining table and to enforcing any agreement in the workplace. Like all legal rights, the contract is only as strong as members’ knowledge of its provisions and willingness to protect it.

This is a moment of truth for unions and their supporters. We need to look in the mirror and see that Janus has two faces. The case could reduce organized labor to a shell, or it could be the start of a remarkable revitalization that draws strength from the widespread social movements that have emerged from both the Bernie Sanders campaign and Trump’s election. The latter is possible, but it will be up to all of us to make it a reality.

This article was originally published at In These Times on November 10, 2017. Reprinted with permission. 

About the Author: Lois Weiner is a professor of education at New Jersey City University who is on the editorial board of New Politics. Her newest book is The Future of Our Schools: Teachers Unions and Social Justice.


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