No, Janus Is Not a Trojan Horse

No, Janus Is Not a Trojan Horse

Originally published in Jacobin on April 18, 2018

The Supreme Court is poised to bring “right to work” (RTW) to the public sector. Conservative, anti-labor forces see this as a blow to labor and are providing the financial and ideological support for the effort. Public employee unions agree that the push — which would outlaw “union security” provisions that mandate workers covered by union contracts pay for their representation — will further weaken unions. Some labor commentators, however, looking for silver linings, argue that Janus v. AFSCME may be a blessing in disguise.

One idea is that a pro-business ruling in Janus could create some sort of legal Trojan horse. Since the argument in Janus is that union activity is political, then — in a kind of legal gotcha — that logic could be used to overturn a host of restrictions on union activity using free-speech arguments.

Let’s get real here — that’s not how judges decide cases. As the legal realist school pointed out over a century ago, judges don’t pull legal decisions from the sky but instead make concrete choices that are political in nature. Anti-labor judges decide cases in an anti-labor fashion. Corporate liberal judges decide cases in a corporate liberal fashion. Labor law is already riddled with contradictions, and restrictions on picketing and solidarity are far greater for unions than any other group. Consistency has little to do with it.

Rather than Janus paving the way for better court decisions, the opposite will be true. Once the Supreme Court rules in Janus, conservatives will turn their sights on the Railway Labor Act. Anti-labor think tanks are already chomping at the bit to introduce RTW in one of the country’s most union-dense industries.

Janus should be viewed as one part of a larger attack on public employee unionism. In Wisconsin, for instance, Scott Walker’s infamous Act 10 included not just RTW provisions but restrictions on bargaining subjects and onerous union recertification requirements. Janus won’t be used, like so much legal alchemy, to expand worker rights. It will deepen the ongoing erosion of those rights.

Seek Truth From Facts

We don’t have to rely on speculation to know that Janus will be a bad thing. In Wisconsin, in the years following the passage of Walker’s law, the percent of workers in unions plunged from 11.7 percent to 8.3 percent, and the state’s union membership rates dropped below the national average. Union rates in the pubic sector were cut almost in half, declining from 50.3 to 26.1 percent.

We know from decades of experience that “right-to-work” states have more meager wages. In particular, teacher wages are dramatically lower in RTW states, including those which have recently flipped. If RTW laws stoked worker militancy, we should have witnessed it in Michigan and Wisconsin. Instead, we have seen cuts in living standards for public employees and few strikes. Anti-labor conservatives know exactly what they’re doing.

Some in the labor movement argue that our response should be to go a step further and argue that since we are not collecting dues from free riders we should abandon being the voice of all workers in a workplace. On one level, this makes sense — why should we represent freeloaders if we can’t charge them dues? Why not forget bargaining for the whole group and only bargain for dues-paying members?

Unions have traditionally rejected that approach because it undercuts union bargaining power. Having multiple groups claiming to speak for workers divides solidarity in the plant. A union bargaining for a fraction of the workforce has little leverage against the employer. And at a deeper level, revival of the labor movement will require a return to radical action such as stopping production and preventing scabs from working. As I have argued elsewhere, accepting right to work implicitly means accepting a right to scab. That is not a place the labor movement should be.

Again, we should look to experience. Chris Brooks of Labor Notes, examining the impact of right-to-work on public employees in Tennessee, has shown that the minority-bargaining approach was devastating to teacher union power in the state. “By advocating for members-only unionism,” Brooks writes, “labor activists run the risk of unwittingly weakening the labor movement by narrowing the scope of union solidarity to a smaller grouping of dues-paying members and setting the stage for yellow unions to pit workers against one another and create further divisions.”

The concerns Brooks raises are exactly why the labor movement traditionally fought against accepting minority status and fought for exclusive representation. The first strike of New York City teachers, in 1960, was to force the employer to recognize the union. The second strike, in 1962, was to win exclusive representation. Unions struggled for and won the right to speak for all workers at an employer.

Others advance a romantic view of minority unionism, claiming that accepting minority status could spur more militancy. Again, decades of experience in RTW states shows produces not evidence for this proposition.

Minority unions, where they did exist in the US historically, were considered pre-majority unions already speaking for all workers at a plant or industry. They were militant minorities seeking to get all workers at the plant and industry to strike. They did not, generally speaking, accept that scabs or nonunion workers had the right to work in the plant or to scab on them. Those who counsel accepting minority status are certainly not following in their footsteps.

What Janus Is Really About

Janus is not about dues collection, mandatory fees, or even exclusive representation. Janus is an attack on the very foundations of unionism — an assault on the solidarity and internal cohesion within a work site. In the Janus framework, unions are not representatives of the entire workgroup but only collections of individuals. Individuals are free to join or not join the union, but they do not operate as a group or a class.

Capital has long rejected the very idea of group or class demands. Whether branding unionism as illegal conspiracies against trade, pushing the open-shop movement of the early 1900s (in which they insisted on the right to hire scab labor), or advocating RTW, employers have always tried to reduce the wage transaction to an individual rather than a class demand. The Janus decision is but one piece in that historic fight between labor and capital.

To be clear, this system of union security and exclusive representation in a single plant or employer is not one of labor’s making. Unionists traditionally set their sights higher and claimed to represent workers in the entire industry or class. They rejected the idea that individuals could choose to sell their labor at less than the union rate and deplored those who crossed picket lines as scabs. Unions insisted on the closed shop (which required hiring of union members) or the union shop (which required all workers to join the union). Union security provisions were a fallback position.

Now, we are told, perhaps we should fall back from the fallback position — accepting minority status within a single enterprise. Were the trade unionists that rejected the open-shop/ RTW framework for 150 years simply wrong? Were the trade unionists that denounced the Taft-Hartley Act as the Slave Labor Act misguided? Were the public employee trade unionists that struck for and won exclusive representation simply wasting their effort? We should be wary, in an era of weakness and decline, of suddenly deciding that employer-imposed doctrines are actually good for us.

The antidote to RTW is not to accept minority status or to look for legalistic strategies to save labor but to double down on more radical solutions. Janus will be an enormous blow. But it does not have to mean the end of the labor movement. As teachers in West Virginia have made clear, a militant, determined group of workers fighting strategically can prevail in spite of labor law stacked against them.

Joe Burns is a veteran union negotiator and labor lawyer and the author of Strike Back and Reviving the Strike.

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