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Judging Janus

Breaking News: Supreme Court Rules Against Unions in ‘Janus’

Led by Associate Justice Samuel Alito, the five-member majority issued a decision that is the culmination of a multi-year effort that has its roots in right-wing judicial organizations, foundations and think tanks.

Danny Feingold




Illustration: Define Urban

Today’s U.S. Supreme Court’s ruling in Janus v. AFSCME should surprise no one who has been watching its conservative justices’ crusade to undermine the influence of American unions — and the political causes they support. Led by Samuel Alito, the five-member majority issued a decision that is the culmination of a multi-year effort that has its roots in right-wing judicial organizations, foundations and think tanks. These entities correctly determined that the long-term political success of the right would be immeasurably enhanced if unions representing government workers could be weakened.

That’s exactly what the high court’s ruling will do, though the full extent of the damage won’t be known for years, and will depend on the tenacity and creativity of the response by unions and their allies. What we do know is this: A 41-year-old precedent has fallen, one that required workers who decline union membership but nevertheless benefit from collective bargaining agreements to pay “fair share” fees to the unions that negotiate these contracts.

Later today, labor law professor Charlotte Garden will tell Capital & Main readers what the ruling says about the politicization of American jurisprudence, and what lies ahead for public sector unions.

For a deeper understanding of the lead-up to today’s decision, visit Capital & Main’s special section on Janus v. AFSCME.

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Judging Janus

Can Unions — and the American Middle Class — Survive the Supreme Court’s Janus Decision?

For the past year Capital & Main has produced a wide range of coverage of Janus v. AFSCME. Below we offer a comprehensive primer on the case, its origins and its potential implications.





Photo by Mark Wilson/Getty Images

If the Supreme Court votes as expected in the landmark Janus v. AFSCME case, conservatives will have fulfilled one of their most cherished goals — weakening the nation’s public employee unions. The right has long sought to deliver this gut punch to the already struggling American labor movement, whose decline over the past several decades has been a major driver of income inequality. While many unions representing government workers have held the line on middle-class wages and benefits, all that could change quickly if conservatives prevail in Janus, further accelerating the country’s economic disparities.

Early next year, lawyers for Mark Janus, an Illinois child-support worker, will argue before the high court that his free speech rights have been violated because he must pay “agency fees” to a union that, among other things, negotiates wage contracts and working conditions on his behalf. Last year, the court deadlocked on a nearly identical case following the death of Justice Antonin Scalia. It is widely anticipated that Scalia’s replacement, Justice Neil Gorsuch, will cast a decisive vote in favor of Janus and against public-sector unions.

This week’s Capital & Main series looks at the forces behind Janus, the potentially devastating consequences of the case — and the possibility that Janus could  galvanize unions in ways that their opponents never imagined.

A Timeline of the Right’s War on Workers — Bill Raden.
Will California’s Unions Survive? — Dean Kuipers.

The Money Machine Behind the Court Case — Robin Urevich.
Wisconsin’s Shadow — Bobbi Murray.

Organizing for 79 Million Millennials –Judith Lewis Mernit.

What Happens to California’s Progressive Agenda? — Gabriel Thompson.

Illustrations by Define Urban.

Several of the unions cited or quoted in this series are financial contributors to Capital & Main.

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Judging Janus

‘Janus’ and Its Supreme Court Enablers

The stacking of the U.S. Supreme Court with anti-union justices has allowed the right-to-work movement to circumvent, and undercut, pro-union state policies.

Gabriel Thompson




AP Photo/Sait Serkan Gurbuz

In the fall of 2015, the Federalist Society, a conservative legal organization with a libertarian bent, held its annual lawyers convention at the Mayflower Hotel in Washington, DC. The three-day event included a panel that reviewed the past decade of the John Roberts court, and featured Michael Carvin, a high-powered attorney with Jones Day, who in recent years has taken the fight against labor unions to the Supreme Court.

Carvin began his remarks, curiously, by downplaying the chief justice. “The real consequential thing that happened 10 years ago, frankly, was not John Roberts replacing Chief Justice Rehnquist,” he told the crowd. Instead, he argued, the dramatic shift had been the replacement of Sandra Day O’Connor by Samuel Alito.

There was a lot that Carvin and Alito had in common. Both were members of the Federalist Society—Alito had joined in 1983, a year after it was founded; Carvin has served as the chairman of the Society’s Civil Rights Practice Group. The men also had worked together at the Justice Department during the Reagan administration. In 2006, when George W. Bush nominated Alito to the Supreme Court, it was Carvin who repeatedly stood up for his former colleague’s far-right views. Carvin even went so far as to defend him when the Wall Street Journal revealed that Alito, when applying for the Reagan position, had written that he disagreed with the Supreme Court decision that had established the “one person, one vote” doctrine as the framework for American elections.

At the Mayflower Hotel, Carvin argued that Alito represented “some baby steps toward the return of law.” Just two months later, Carvin was in front of Alito and the eight other justices, arguing a case, Friedrichs v. California Teachers Association, that sought to strip public sector unions from “fair share” fees they collected to represent workers who declined to join the union. (By law, a union must represent all workers in a bargaining unit, whether or not they choose to join. It was a far-reaching case that could cripple the power of unions, and would represent the crowning achievement of a conservative movement that had been decades in the making. Disclosure: The California Teachers Association is a financial supporter of this website.)

In a unanimous 2009 decision, the court reaffirmed a 1977 case, Abood v. the Detroit Board of Education, which had ruled that unions could charge such fees. But the ascent of Alito had helped shift the court in a vehemently anti-union direction, and it was widely expected to rule against the unions in Friedrichs. Then Antonin Scalia suddenly died, and the court deadlocked, four-to-four. The reprieve was only temporary, however. In February, the Supreme Court heard a similar case, Janus v. AFSCME Council 31, and with its newest addition, Neil Gorsuch, the court is poised to reverse a precedent that has endured for more than 40 years.

“Here we have the Supreme Court setting an agenda, and very openly—blatantly, you might say—setting out to achieve it,” says Linda Greenhouse, who covered the Supreme Court for the New York Times for three decades, and now teaches at Yale Law School. “It’s a real unusual tale.”

The Supreme Court’s transformation into an anti-union institution runs directly through Alito, a 68-year-old from New Jersey who graduated from Yale Law School. He worked as assistant to the solicitor general in the Reagan administration, landing the post in August 1981, the same month Reagan broke the air traffic controllers’ strike. Two years later, he would join the Federalist Society, which was co-founded by another Yale law student, Steven Calabresi, who would eventually clerk for the group’s first faculty adviser, Antonin Scalia.

Members of the Federalist Society believed that “activist jurisprudence” posed a serious threat to democracy, as then-Attorney General Edmund Meese III told the group in a fiery 1985 speech. Conservative ideologues found a home in the Reagan administration; aside from Alito, Federalist Society members in the administration included the future Chief Justice Roberts and Clarence Thomas.

Alongside its rhetoric against big government, society members have consistently attacked labor unions. One Federalist Society newsletter from 1996 complained about the “increased radicalism of Big Labor officials,” and called the requirement that workers pay fees to cover collective bargaining costs a “tyranny of the minority.”

There is little to indicate that Alito doesn’t share such views. He was nominated to the Third Circuit Court of Appeals in 1990 and held the position for 15 years. At the Third Circuit, Alito consistently ruled against working people and unions. In one case, in a minority dissent, he argued that a group of reporters weren’t covered by the overtime compensation requirements of the Fair Labor Standards Act. In another, he reversed a National Labor Relations Board ruling that a company had violated the law because it had refused to rehire an employee who engaged in union activities. (Alito did admit, however, that there was solid evidence the company had threatened union activists with firings and plant closures.)

On the Supreme Court, Alito has made it clear that he relishes the chance to overthrow Abood. In a 2014 decision in Harris v. Quinn that further eroded the right of public sector unions to charge “fair share fees,” he wrote in a majority opinion that the Abood decision rested on “questionable foundations,” all but inviting a new challenge.

Justice Anthony Kennedy has joined Alito in his anti-union crusade. In 1999, Bill Moyers interviewed Kennedy who spoke about the importance of neutrality on PBS’ Frontline. “Our system presumes that there are certain principles that are more important than the temper of the times,” he told Moyers. “And you must have a judge who is detached, who is independent, who is fair…That’s the meaning of neutrality.”

Those are not the attributes Kennedy has demonstrated on the bench when the topic has turned to public sector unions.

Union attorney David Frederick argued during Janus that the current arrangement allows for unions to truly represent all workers, and that the state and the union had an interest in a stable partnership—essentially echoing the “labor peace” logic that was cited in Abood. Kennedy jumped at this notion, and went into a rant.

“It can be a partner with you in advocating for a greater size workforce, against privatization, against merit promotion, against—first teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes? That’s—that’s the interest the state has?”

Frederick had said no such thing, but the exchange illustrated Kennedy’s lack of detachment on the issue of public sector unions. Later in the oral argument, Kennedy returned to a political talking point. “I’m asking you whether or not in your view, if you do not prevail in this case, the unions will have less political influence; yes or no?” After Frederick acknowledged that they would have less influence, Kennedy retorted, “Isn’t that the end of this case?”

“It is not the end of the case, Your Honor, because that is not the question,” Frederick replied. It was clear that Kennedy was not only thinking about the constitutionality of the case, but its political consequences—that he was caught up in the “temper of the time,” exactly as he had once counseled against.

Before the confirmation of Neil Gorsuch, the Federalist Society had been instrumental in securing the nominations of two justices, Roberts and Alito. Roberts, during his confirmation hearings, had emphasized his respect for precedent, noting that reversing earlier rulings was a “jolt to the legal system” and that it was “not enough that you may think the prior decision was wrongly decided.” Instead, he testified that it depended on considerations like whether the ruling had “proven to be unworkable.” In 20 states, plus Washington, DC, laws allow for collective bargaining agreements that compel employees who decline to join unions to pay agency fees. The other “right to work” states do not compel employees to do so. Both arrangements have proven workable.

During the Janus argument, Gorsuch remained silent, but on the Tenth Circuit he amassed a significant history of anti-worker rulings. In a minority dissent in Compass Environmental v. OSHRC (2011), he argued against a $5,500 fine placed on a mining-construction company after an employee who hadn’t received proper safety training was killed. In another minority dissent, he ruled against the Labor Department, which had determined that a driver was unlawfully fired after he had detached his truck from his broken-down trailer and driven away, fearing that he could freeze to death had he remained. And in May, he wrote the majority opinion for Epic Systems v. Lewis, which effectively allows employers to force workers to sign away their rights to class action lawsuits for wage and hour claims.

With that sort of history, it appears all but certain that Gorsuch will side with Alito. Indeed, last September, just hours before the Supreme Court announced it would hear Janus v. AFSCME, Gorsuch gave a speech at Trump International Hotel in DC, at a “Defending Freedom” luncheon hosted by the Fund for American Studies. One fund supporter, the Bradley Foundation, also sponsored that evening’s gala to celebrate the Fund’s 50th anniversary. The Bradley Foundation is a conservative group that “supports organizations and projects that reduce the size and power of public sector unions.” It helped fund the Janus case, along with other recent anti-union litigation the Supreme Court has heard.

“He spoke in front of a group at a hotel, and the group is supported by the same folks who are party to a lawsuit he will be hearing,” says Gabe Roth, executive director of Fix the Court, which pushes for greater Supreme Court openness and was critical of Gorsuch’s decision to speak at the luncheon.

Organizations like the Bradley Foundation, State Policy Network and Illinois Policy Institute have been waging anti-union campaigns at the state level, where they have had some notable successes in moving legislatures and governors to adopt right-to-work laws. But there are still many states, like California and New York, whose voters and politicians have resisted this trend. However, stacking the Supreme Court with anti-union justices has allowed the movement to circumvent, and undercut, pro-union state policies.

“They’re going to do what they can to use the First Amendment to cut the legs out from under unions in the public sector,” concludes Greenhouse. “It seems to me it puts the court in a very vulnerable position of looking like a lot of politicians in robes that are doing what politicians can’t.”

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Judging Janus

Legal Scholar: Sliver of Hope for Labor After Janus Hearing

The Janus v. AFSCME case that landed before the U.S. Supreme Court Monday may not only affect the destiny of public-sector unions, but also how much equal access to the democratic process Americans will have in the future.

Bill Raden




Illustration: Define Urban

The U.S. Supreme Court heard oral arguments Monday in Janus v. American Federation of State, County and Municipal Employees, the much-anticipated case in which plaintiffs are seeking to overturn the court’s 1977 Abood v. Detroit Board of Education decision.

That landmark ruling established the legality of public-employee unions to charge fair-share fees from members who have opted out of paying dues, and formed the basis for thousands of collective bargaining agreements for the nation’s 21 million government workers. The public-employee labor movement Abood ushered in is widely seen as a bulwark of Democratic Party power in the U.S. A decision is expected by the end of the court’s current term, in late June or early July.

Capital & Main spoke by phone with Seattle University School associate professor of law Charlotte Garden, who was in the court today, about her takeaways for Janus’ prospects.


Capital & Main: What is this case about?

Charlotte Garden: Janus is about whether it violates the First Amendment for a state and a union to agree that represented public-sector union members can be required to contribute to their share of the costs of union representation.

Most observers believe that the decision to outlaw public-sector union fair-share fees is a foregone conclusion. That’s because a similar case argued in 2016, Friedrichs v. California Teachers Association, deadlocked only due to the death of Justice Antonin Scalia, who was replaced by conservative Justice Neil Gorsuch. Did today’s arguments suggest any chance for a reprieve for labor?

Garden: I think they did. I wouldn’t go so far as to say I’m optimistic. I went into Friedrichs hopeful and left feeling completely hopeless; and I went into argument today feeling hopeless and left with maybe a sliver of hope. That is in part because Justice Gorsuch and Chief Justice Roberts really didn’t tip their hats. So it’s not entirely clear what they think. Now the way to bet is that they are going to strike down fair share fees. That’s what Justice Roberts voted for in Friedrichs and, with this issue becoming an increasingly partisan one, and given Justice Gorsuch’s votes in other cases so far, I think the way to bet is that he’ll also vote to strike down fair share fees.

The briefs, especially the union’s brief, were really drafted in a way that was designed to get at what are likely to be Justice Gorsuch’s concerns. So the union’s brief, for example, talked about originalism quite a bit and the history of First Amendment protection for public employees in a way that targeted Justice Gorsuch.

Was that the most striking difference for you from the Friedrichs arguments?

Garden: That was one difference. I think the other things were that the union and the State [of Illinois] just sharpened their arguments about why Abood, this 40-year-old precedent that the court is considering striking down in Janus, really is consistent with the way the court has treated public-sector employee speech in lots of other contexts.

There have been something like 79 amici curiae briefs filed on behalf of both sides of Janus. They argue everything from the disproportionate harm that overturning Abood will represent for women and persons of color, who greatly benefit from public-sector union membership, to the legal can of worms the court will be inviting in establishing a First Amendment precedent to challenge on far more trivial matters of government employment concerns. How much weight do those briefs traditionally carry with the court?

Garden: There’s a little bit of research about how influential amicus briefs are, and I think amicus briefs have become more prevalent, especially in high-profile cases over the last couple of decades. There is probably sort of a tipping point, and I’m not sure whether this case would have gone past this, where there’s a trade-off between the number of amicus briefs that are filed and the justices are sort of [being] deluged — and the ability of the briefs to round the case out and really put it in context.

But in this case there were a couple of amicus briefs that I think stand out as being [potentially] influential: One of them is the brief by Charles Freed and Robert Post. That was mentioned by name in oral arguments as a potential kind of compromise position. The other one is a brief by Eugene Volokh and William Baude, two prominent libertarian constitutional scholars, who weighed in on the side of the state and the union, saying that there isn’t really a substantial line of First Amendment case law establishing that there’s some kind of right to avoid compelled subsidization of speech.

Because there’s actually a conservative interest in preserving Abood, right?

Garden: Exactly. Think about all the ways that public-sector employment benefits are bound up with private companies, or are administered by private companies. If you’re a public sector employee and you’ve got some kind of pension, for example, it’s probably administered by a private corporation and a share of your pay every week goes towards that corporation’s fees to administer this fund for you. That corporation probably engages in all sorts of political spending that you might agree or disagree with, and yet nobody has ever really thought before that that might pose some sort of First Amendment problem. Whereas if the court overruled Abood, then I would expect to see more challenges to that sort of arrangement.

How radical an act of judicial activism would it represent to overturn Abood?

Garden: I think it would be remarkable for the court to turn away from not just this 40-year-old precedent, but also this long line of cases, including both older cases and more recent cases about the rights of public employers to manage their workforces as they see fit. So it’s one thing to overturn a stand-alone case, but that’s not what would happen here. It would really require some hard work, and maybe some kind of fancy footwork for the court to come up with a reason that agency fees are somehow different than all the of the ways that states currently restrict public employee speech.

Is that now it for Janus, or could a mass march on Washington influence the court?

Garden: I think there are probably some historical examples where public opinion has played a role in swaying the court. I’m not sure how likely this case is to be one of them. In part, that’s a reflection of the fact that its heart is a kind of complicated legal issue that only part of the public is interested in. It’s not like a Brown v. Board of Education or a gay marriage case, where lots of people are really focused on the issue. So I’m not so sure about that.

If you’re in a public-sector union or you’re represented by a public-sector union, now is the time to be talking with your coworkers — talk to them about why union membership is important. I’d add that if you care about the political gerrymandering cases [or] about equal access to the democratic process, then you should also care about this case.

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Judging Janus

Judging Janus: The Money Machine Behind the Attacks on Labor

Co-published by International Business Times
Millions of public-sector workers could soon be targeted by conservative groups trying to dissuade them from paying union fees.

Robin Urevich




Illustration: Marco Amador


The Freedom Foundation and California Policy Center aim to bleed labor treasuries
through litigation.

Mark Janus, an Illinois child-support worker, will soon argue before the U.S. Supreme Court that his free speech rights have been violated because he must pay “agency fees” to a union that, inter alia, negotiates contracts on his behalf. Last year California elementary school teacher Rebecca Friedrichs made the same First Amendment arguments at the high court against the teachers association to which she paid agency fees. The court deadlocked on Friedrichs’ complaint following the death of conservative Justice Antonin Scalia, but his replacement, Justice Neil Gorsuch, is widely expected to cast a decisive vote in favor of Janus and against public-sector unions.

Co-published by International Business Times

California’s labor movement has helped enact some of the most progressive reforms in the country, including the $15 minimum wage, rights for domestic workers and sanctuary state legislation to protect undocumented residents. It has helped to establish the state as a counterweight to the Trump administration. But the Supreme Court is likely to undercut that power when it rules later this term in Janus v. American Federation of State, County and Municipal Employees Council 31.

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“The entire country will become right-to-work with the stroke of pen,” predicted Terence Pell, the president of the Center for Individual Rights at a Heritage Foundation event in Washington DC last August.

Pell, whose organization represented Rebecca Friedrichs against the CTA, exaggerated the impact of a Janus win, but not by much. The decision would affect only public employees, but they comprise the majority of unionized workers in the country. Thirty-four percent of public-sector workers are in unions nationwide, compared to just six percent of those who work for private companies. In California, some 54 percent of public employees hold union cards, while only about nine percent of private-sector workers do, according to

Millions of public-sector workers would be fair game for anti-union messages from groups on the right, including the Washington state-based Freedom Foundation. “By educating union members about their right to stop paying dues, the Freedom Foundation defunds Big Labor,” a narrator intoned in a videotaped fundraising appeal earlier this year. “That means more money for the workers and less money for liberal politicians.”

Donors Capital Fund and Donors Trust have been conduits for contributors like the Koch brothers to fund attacks on unions.

Cutting unions off at the knees to curtail their political power is the dream project of some of the nation’s biggest right-wing funders and activists, including the Koch brothers, the Lynde and Harry Bradley Foundation ($845 million in assets in 2015) and the State Policy Network (SPN) a consortium of 66 ultra-conservative think tanks with a combined revenue of some $80 million. For years these groups have poured money into anti-union causes in the belief that union-backed Democrats stand in the way of slashing government spending and of privatizing education through more charter schools and school voucher programs.

The SPN director, Tracie Sharp, wrote in a 2016 fundraising letter, “Today, coercive Big Government unions are the biggest sources of funding and political muscle for the Left – but we are also primed right now to deliver the mortal blow to permanently break its stranglehold on our society.” Sharp especially singled out teachers’ unions for her ire.

The Bradley Foundation, whose founder, Harry Bradley, was a member of the John Birch Society, gave out more than $42.5 million in 2015 (the last year for which its tax return is available), including a half-million-dollar grant to the Freedom Foundation. Documents obtained by the Center for Media and Democracy showed that union-busting to defund Democrats has been an aim of Bradley Foundation grant-making for at least 14 years. The documents include notes about many of the foundation’s grants that are similar to one attached to a $100,000 gift to Colorado’s Independence Institute, for “neutralizing the power of Colorado’s teachers’ unions by defunding them at the local school district level.”

Not to be outdone, the Alexandria, Virginia-based Donors Capital Fund, a “donor advised” fund that channels individual contributions to specific causes while allowing contributors—like the Koch brothers and the DeVos family— to remain anonymous, shelled out more than $67 million in 2015. Much of it went to fund an infrastructure of right-wing think tanks and activist groups, including nearly $4 million to the SPN (where Rebecca Friedrichs is now a fellow) and its state affiliates. Donors Capital Fund and its sister fund, Donors Trust, have been conduits for contributors like the Kochs to fund attacks on unions, notably the fight against collective bargaining for public employees in Wisconsin, as Mother Jones reported in 2013.

California groups have yet to attract much of these donors’ largesse, but the opportunity for a big win against labor could change the equation. In Orange County, two SPN affiliates share a Tustin office — the Washington state-based Freedom Foundation and the California Policy Center — and aim to be at the heart of attempts to convince union members to quit paying dues, and to bleed labor treasuries through litigation.

The California Policy Center, founded in 2010, is still small, with more than $800,000 in revenue in 2016, the last year for which its tax return is available. Nonetheless, the organization doubled its revenue in both 2014 and 2015. In 2015, it scored a $120,000 grant from Donors Capital Fund, and a $50,000 assist from the center’s parent organization, the State Policy Network.

Robert Loewen, a retired corporate attorney with Gibson Dunn, became chairman of the California Policy Center board four years ago because, he said, he wanted to combat the idea that “people on the left were champions of the little guy. They’re actually hurting the little guy, so it was all a big lie.”

Loewen argued that money from public-sector unions drives the liberal narrative. Politicians are in lock step with labor, Loewen claimed, because of the latter’s campaign cash.

But it’s not only politicians who Loewen believes are controlled by organized labor.

“The PTA has been corrupted by the unions,” he said. “Somehow or other, they have to find out they’ve been set free,” Loewen said of the teachers he hopes will be emancipated by Janus.

“Someone has to show them – this is how you leave the union.” That someone would be Loewen and his group.

Loewen’s plans to target education unions may seem cribbed from SPN’s playbook, but he denies SPN is involved with his organization.

“That network has nothing meaningful to do with my operations,” Loewen claimed, adding that he was unaware of its $50,000 donation. “If they would come and dump $10 million in my bank account, I would love that.”

Defender of the Little Guy may be an awkward mantle for Loewen and the California Policy Center leaders to take up, given their wealth and backgrounds. But Loewen said his organization has reached beyond its traditional base – in part to combat what he calls “the left’s narrative” that it stands with working people.

Loewen and his board are longtime backers of Republican causes, and the move comes as Orange County voters increasingly turn to the Democratic Party, partly because of a growing Latino electorate. The California Policy Center is a tax-exempt non-profit, despite its desire to affect political change. So far, no one has suggested that the center has violated its tax-exempt status by engaging in overtly political activity, but the Freedom Foundation has recently been accused of doing so in complaints to the IRS and the attorneys general of Oregon and Washington.

Loewen’s organization backs a parent union led by Santa Ana school board member Cecilia Iglesias, who is also community relations director at the California Policy Center. The group joined Anaheim parents at Palm Lane Elementary in a three-year battle to convert their school to a charter.

The Freedom Foundation created cable TV ads and a website that instruct child care providers how to quit paying union dues.

Last July the group screened the anti-teachers-union documentary Waiting for “Superman” at a Santa Ana restaurant. Afterward, parent-union activist Celia Robles said she participates because her son’s school hasn’t been responsive to her. She joined a school advisory committee, but felt ignored when she questioned budget figures. She said her son’s teacher brushed off her concerns that he’s not sufficiently challenged in the classroom, saying, “He’s doing well enough.”

In reaching out to the grassroots, the California Policy Center may have borrowed from the approach of its fellow SPN affiliate, the Freedom Foundation, which targets individual union members by visiting them at home.

The foundation began the project three years ago when the Supreme Court ruled, in Harris v. Quinn, that nearly a million workers nationwide who care for the elderly and disabled in their homes couldn’t be forced to pay so-called agency fees for union representation if they chose not to join the union.

Following the court’s decision, the Freedom Foundation launched a campaign modeled on union organizing to strip home-care and in-home child care workers’ unions of their memberships in Washington and Oregon, and this year in Orange County, California.

The foundation sought to obtain lists of workers, and set off to connect with them. The group created cable TV ads and a website,, that encourages home health aides and child care providers to quit paying dues, and instructs them how to do so. It’s also filed lawsuits against unions and launched a failed effort to establish its own union for child care workers to compete against the Service Employees International Union in Washington.

In Oregon, union membership among home-care workers has fallen by 40 percent.

The Freedom Foundation trumpets its own achievements, but payroll records from state agencies in Washington and Oregon show mixed results. In Oregon, union membership among home-care workers had fallen by 40 percent. However, 88 percent of Washington state home-care workers still belonged to the SEIU, while 78 percent of licensed child care workers remained dues-paying members. In Orange County, local Freedom Foundation director Sam Han said it was difficult to track progress because he’s been unable to obtain lists of home-care workers from the state.

“They haven’t changed our ability to win significant wage and benefit improvements,” said Adam Glickman, secretary-treasurer of SEIU Local 775 in Washington. “They haven’t changed our ability to engage in politics and advocate for our members. It’s been a legal nuisance, frankly.”

At SEIU’s Local 925 in Seattle, which represents child care providers, executive vice president Tricia Schroeder agrees. The Freedom Foundation is far from destroying the union in the short term, but her union has had to respond to its attacks, which costs money.

“It’s disheartening as a union leader that that’s the way you spend union dues. I would much rather run stronger contract campaigns and organize.”

That may well be part of the Freedom Foundation’s strategy. When it forces unions to fight back, it drains their resources. Its funders certainly seem persuaded that the Freedom Foundation is hitting its mark. The group reported a million-dollar increase in its total revenue in 2015 — a 50 percent jump from the year before, according to its latest publicly available tax return.

Whether anti-union groups can do as well or better than the Freedom Foundation if Mark Janus wins his case is an open question.

They’d face a very tough sell with teachers, firefighters and police officers, whose unions have achieved middle-class wages, health care and pension plans for their members that are rare outside of the public sector. What’s more, the political muscle that labor has built in California could cause the same right-wing forces that bemoan it to think twice before making a major investment in the state, at least in the immediate aftermath of a pro-Janus decision.

Several of the unions cited or quoted in this series are financial contributors to Capital & Main.

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Judging Janus

Judging Janus: A Timeline of the Right’s War on Workers

Co-published by AlterNet
A Supreme Court case that could topple the power of California’s unions has been a perfect storm gathering for 40 years.

Bill Raden




Illustration: Define Urban

America has been down the road to Janus before. The early years of the 20th century saw the Supreme Court dominated by a similar anti-labor stridency.

Mark Janus, an Illinois child-support worker, will soon argue before the U.S. Supreme Court that his free speech rights have been violated because he must pay “agency fees” to a union that, inter alia, negotiates contracts on his behalf. Last year California elementary school teacher Rebecca Friedrichs made the same First Amendment arguments at the high court against the teachers association to which she paid agency fees. The court deadlocked on Friedrichs’ complaint following the death of conservative Justice Antonin Scalia, but his replacement, Justice Neil Gorsuch, is widely expected to cast a decisive vote in favor of Janus and against public-sector unions.

Co-published by AlterNet

“The fight waged against unionism today is no less bitter than it was 50 years ago,” wrote Clarence Darrow in 1904. “It is simply directed along other lines.” Evidence of how little things have changed since Darrow’s time can be found in the pending U.S. Supreme Court case Janus v. AFSCME. For America’s public-sector employees and electoral politics, the stakes are enormous.

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“The corporate lobbies didn’t put decades of time, money and energy into this because it’s marginal,” observed Gordon Lafer, a policy researcher with University of Oregon’s Labor Education & Research Center. “It’s a big thing.” Indeed, the high court’s closely watched case could be seen as the culmination of 40 years of ceaseless attacks on labor.

“The growing economic inequality in the country is now going to get translated into growing political inequality.”

The road to Janus is one that labor has been down before. Its most striking historic parallel may be to today’s Roberts court and its judicial-activist doctrine of “First Amendment Absolutism” — the constitutional belief that union dues are a violation of workers’ free expression, but that unlimited corporate political spending is an inviolate act of free speech. The first 40 years of the 20th century saw the Supreme Court dominated by a similar philosophy of anti-labor stridency.

Those bare-knuckled decades were marked by overt violence against workers, mass arrests, the criminalization of labor organizing and a right-leaning high court that, among other things, held that the federal government could not ban child labor.

Over the last 40 years, American workers have seen resurgent — if far more refined — attacks on their rights, often through paid news-media opinion pieces and manipulated polling questions that depict certain groups of employees as privileged or overpaid.

“It’s a very simple idea, which is divide and conquer,” said Fred Glass, a City College of San Francisco labor historian and author of From Mission to Microchip: A History of the California Labor Movement. “It’s the employing class, the one percent, saying to workers, ‘Look at that group of workers over there, at how much better they have it than you,’ while they are the ones that are creating these policies. They’re the ones that are causing the economic inequality to grow.”

The chapter and verse of divide and conquer was laid down in 1947’s Taft-Hartley Act, which explicitly empowers individual states to outlaw workplace security clauses through so-called right-to-work laws. But Janus’ DNA is also tangled in the same ’50s/’60s social ferment that saw public-sector union organizing successfully expand collective bargaining rights to state and municipal workers. The first public sector labor law was passed by Wisconsin in 1959. And while it would take California another two decades and three separate bills to catch up, by the time New York enacted the Taylor Law in 1967, 21 states had legalized some type of public-sector collective bargaining. One year later, the National Right to Work Legal Defense Foundation (NRTW) was born.

Singularly focused on outlawing the union shop through First Amendment arguments, NRTW tested this line of attack when it sued Detroit schools. 1977’s Abood v. Detroit Board of Education decision, in which the Burger Supreme Court underscored the state’s interest in maintaining “Labor peace,” spelled out the union’s right to collect a “fair share” or agency-shop fee from non-union members of a bargaining unit to pay for the non-political costs of bargaining.

Any taste of victory turned out to be fleeting. By the end of the ’70s, labor found itself leaping from the frying pan of the courts into a neoliberal inferno of deregulation. In quick succession, the Airline Deregulation Act of 1978, the Motor Carrier Act of 1980 and the 1982 breakup of AT&T decimated union jobs in their respective sectors, inaugurating a long slide in private-sector union density.

“The first thing that is destroyed
by any authoritarian regime is
the labor movement.”

The era’s biggest quake for both public- and private-sector labor came with Ronald Reagan in 1981, when roughly 11,500 public-sector union members of the Professional Air Traffic Controllers Organization (PATCO) struck in an illegal walkout. What happened next continues to reverberate to this day: Reagan famously broke the union by firing strikers and decertifying PATCO. The bargaining power of unions was never the same: On the public-sector side, federal work stoppages virtually ceased; in the private-sector, emboldened employers like Phelps-Dodge and Hormel followed suit by illegally dismissing strikers at their own plants in favor of permanent replacements.

“It became sort of a green light from the federal government that it was a field day for union-busting,” City University New York labor sociologist Ruth Milkman told Capital & Main. “Legally nothing really has changed [but] the political culture and the norms that employers feel obliged to conform to are suddenly pulled out from under [the workers].”

Aftershocks inevitably followed PATCO’s demise, often in the form of right-to-work laws. Eight states voted to leave the ranks of union security after 1985, not the least being Michigan, which in 2012 voted to outlaw the agency shop in the cradle and home of the United Auto Workers union. But it was Wisconsin’s election of far-right Republican Scott Walker and the 2011 passage of Wisconsin Act 10 that seemed to suggest the true magnitude of a post-Janus world. The bill, which effectively ended collective bargaining for some 380,000 state and local government employees, came with the Tea Party fingerprints of the American Legislative Exchange Council and a subsequent 38.5 percent plunge in union density.

“In a way the whole country is becoming Wisconsin.”

On the constitutional side, much had changed since Abood. New right-wing law groups like the Center for Individual Rights and Citizens United, together with the anti-union lawyers association the Federalist Society, whose libertarian members now comprise four of the Supreme Court’s five-justice conservative majority, including both Neil Gorsuch and First Amendment hardliner Samuel Alito, joined in what has amounted to a perfect judicial storm of conservative activism. Its radical dimensions were first revealed by Citizens United v. Federal Election Commission, the 2010 decision striking down parts of the 2002 McCain-Feingold federal campaign finance law by ruling that the writing of a corporate campaign check was now constitutionally protected expression.

“Citizens United basically says that the growing economic inequality in the country is now going to get translated into growing political inequality,” noted Gordon Lafer. “Because however much outsized share of the economy is controlled — by the one percent or the .01 percent — they’re going to have that much [more] political influence as well.”

The court’s next decisions to touch on agency fees — a pair of First Amendment challenges brought by NRTW — were shots across the bow of public-sector unions, challenging their ability to fund their own existence. Neither 2012’s Knox v. Service Employees International Union nor 2014’s Harris v. Quinn went so far as to pull the trigger on the 1977 Abood decision, but both contained Alito-penned critiques of fair-share fees that, to constitutional lawyers, were unmistakable invitations to overturn a precedent. The seemingly inevitable ruling will come as an anticlimax for all but the 7.1 million public sector employees directly affected, along with the millions more who have come to rely on their collective voice as a bulwark against unaccountable private power.

“In a way the whole country is becoming Wisconsin,” Ruth Milkman reflected. “What’s not really discussed much but is fundamental in this context is why the Right to Work Foundation and other groups are so eager to see this happen. I think the answer has to do with electoral politics — that these are the unions left standing.”

“The floodgates are open with the Trump administration,” agreed Fred Glass. “The first thing that is destroyed by any authoritarian regime is always the labor movement. We are potentially witnessing that moment.”

Several of the unions cited or quoted in this series are financial contributors to Capital & Main.

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Judging Janus

Judging Janus: Organizing 79 Million Millennials

The Pew Research Center says that among millennials who head households, more live in poverty than do households led by previous generations — and that national support for unions is largely driven by millennials.

Judith Lewis Mernit




Illustration: Define Urban

Just as millennial enthusiasm for collective bargaining grows, labor’s political power and influence wane toward a historic nadir.

Mark Janus, an Illinois child-support worker, will soon argue before the U.S. Supreme Court that his free speech rights have been violated because he must pay “agency fees” to a union that, inter alia, negotiates contracts on his behalf. Last year California elementary school teacher Rebecca Friedrichs made the same First Amendment arguments at the high court against the teachers association to which she paid agency fees. The court deadlocked on Friedrichs’ complaint following the death of conservative Justice Antonin Scalia, but his replacement, Justice Neil Gorsuch, is widely expected to cast a decisive vote in favor of Janus and against public-sector unions.

Co-published by Fast Company

Generational labels are fraught with inconsistencies. Growing up is not, after all, a controlled experiment. But to the extent that millennial labels apply, Andrew Cohen’s story is emblematic. He watched as his parents fell victim to eroding protections for employees (his father, a luxury car salesman, lost his job and declared bankruptcy when Cohen was 8). He graduated from high school, only to find college extremely expensive and, because he had to pay his own way, ran up $20,000 in student-loan debt.

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Later he would enter the Great Recession’s depressed job market, with few slots available to liberal arts graduates outside the low-paying service industry.

“A lot of my friends expected to own a house and have a family by the time they turned 30,” he says. “It was very shaky for people.” Among millennials who head households, a Pew Research Center study found in September, more live in poverty than do households led by previous generations.

“What our generation has lacked, and needs, is stability. Unions offer that stability.”

By the time Cohen was 23 years old in 2009, the plans he had laid for his life collapsed. A self-described “dirty, punk-rock kid,” he had been thinking about environmental and economic justice, while participating in protests and direct actions. Armed with a bachelor’s degree in anthropology from the University of California, Santa Cruz, he expected to begin his post-college life with Teach for America, working with disadvantaged students in under-funded urban schools.

But after several rounds of interviews, Teach for America unexpectedly rejected his application. He suspects that a felony assault charge, incurred during a mass arrest at the 2008 Republican National Convention, had something do to with it, even though the charge was dropped. “The timing,” he says, “was suspicious.” At any rate, he needed another option.

It’s perhaps no surprise that many of Cohen’s friends — “people who weren’t political at all” — have come to look favorably upon organized labor. An annual Gallup poll conducted over the summer shows that adults in general support labor unions at 61 percent, the highest approval rating since 2009, when the poll found support for unions at an all-time low of 48 percent. A Pew Research poll conducted two years earlier shows that enthusiasm is largely driven by the 79 million millennials who currently dominate the workforce: 55 percent of 18 to 29 years olds, the poll found, approve of unions.

“What our generation has lacked, and needs, is stability,” says Maggie Thompson, who calls herself an “old millennial” (she’s 32) and studies labor trends for the Center for American Progress. “Unions offer that prospect of stability.”

Cohen couldn’t look for stability with his parents, as some do; they’d lost their house the year before. He had to get a job. Finally, he found one. UNITE HERE Local 11, a labor union for hospitality workers in Los Angeles, recruited him as a “salt.”

“They said, ‘Go get a job at this hotel, get in with the rank and file, and try to get them to organize.” The job paid near minimum wage. He took it.

Cohen, now 31 and working as a communication specialist for the union, saw firsthand on that job how solidarity brings out the best in people. At the Embassy Suites hotel in Irvine, he helped collective bargaining win employees back pay for denied rest breaks, a workers’ compensation settlement and, ultimately, respect. “It was a formative experience,” he says. But he worries his fellow millennials won’t have the same opportunities. Just as millennial enthusiasm for collective bargaining grows, labor’s political power and influence wane toward a historic nadir.

Twenty-eight states now have right-to-work laws that limit unions’ abilities to collect dues from workers, even if those employees benefit from negotiated contracts. More than a third of workers freelance as independent contractors, most of them without the protection of a trade union. And after two previous failed efforts to deprive labor unions of income by eliminating “fair share” fees — monies paid to unions by nonunion employees who benefit from collective bargaining contracts — the one the U.S. Supreme Court is currently mulling, Janus v. AFSCME, looks poised to succeed.

“I think [Janus] has got the potential to be extremely destructive, like national right-to-work laws,” Cohen worries. “I’m expecting at some point Trump’s administration is going to turn their full attention to labor. I’m fearing the worst.”

Cohen isn’t being dramatic. One of the most direct effects of both the “gig economy” and right-to-work laws has been to deprive unions of their members and, therefore, the dues they need to fight back. As much as millennials might approve of unions, few of them are members: Only 10.7 percent of wage and salary workers currently belong to a union, according to the latest count by the Bureau of Labor Statistics, compared with 20.1 percent in 1983.

“Janus is an opportunity. We need to stop this ATM that dispenses contracts and become an actual organization that recruits and persuades.”

One of the reasons for that, says Larry Williams, Jr., the 30-year-old president of the Progressive Workers Union, is that millennials literally don’t know that labor unions exist. Williams, whose union represents about 200 national field employees at the Sierra Club, says that he himself knew little about the labor movement before he took a temporary job with the Teamsters nine years ago. “I thought, ‘Why did I not know about this? Why is this not something that’s taught to every young person in the world, that they have rights as a working person?’”

His “discovery of the labor movement as a young man,” he says, inspired him to create UnionBase, which he describes as “the first social networking platform for organized labor.” Launched this past Labor Day, UnionBase allows workers to search for organizations that might represent their profession. Union leaders can also use it to verify their organizations’ information and, eventually, communicate with members. Ultimately, he hopes, the platform will help unions move beyond the traditional “servicing” model, where employees pay dues for union leaders to negotiate with employers on their behalf, to an organizing model, where workers mobilize to defend their own interests.

In that way, Williams says, “Janus is an opportunity. We need to stop this ATM that dispenses the contracts, and become an actual organization” that recruits and persuades. “Speaking far into the future,” he envisions the 14.6 million workers who belong to unions in the U.S. agitating for benefits that extend beyond the boundaries of their memberships and the corporations they work for.

“Union contracts can cover a wide array of things outside of your workplace,” Williams says, “like child care, health care, education. Before there was the Affordable Care Act, it was unions who negotiated the best health care for their workers.” That same health care should be available to everyone, he says. “The idea is to make a bigger tent so as many people as possible can be covered by union contracts.”

“Being joined together in a union is the way that we actually live in a democracy. It’s the way we enforce democracy.”

That tent has a precedent in the U.S. In the 1960s, “Jimmy Hoffa worked to organize the truckers yard by yard,” Williams says. He didn’t stop until he had 450,000 truckers covered under a Master Freight Agreement. “[It] brought all of their wages in line regardless of state.”

“It was,” Williams notes, “the largest movement of working people into the middle class.” Whatever happens in the courts or Congress, the work of raising the working-class standard of living won’t change. “That’s always been the mission,” Williams says. “The mission doesn’t change.”

Andrew Cohen has no intention of abandoning that mission, either. “For me and a lot of my peers, if right-to-work passes and the union has no money, we’ll still work rank-and-file,” he insists. One of his colleagues, 28-year-old UNITE HERE campaign researcher Elle Farmer, suspects that won’t be necessary. While union membership has dropped nationwide, “UNITE HERE is growing,” she says. “We’re the fastest growing private-sector union in the country.”

Besides, says Farmer, who left a career as a public defender to work in labor, no change in any law can take away workers’ fundamental right to organize. “People have been forming bonds of solidarity the entire time we’ve been humans,” she says. People in her age bracket see that more clearly than ever. “They’re seeing that being joined together in something that is or looks like a union is the way that we actually live in a democracy. It’s the way we enforce democracy.”

“It’s not 100 percent, it’s not across the board, and it’s never perfect,” she adds. “But organizing around the conditions of our existence in this world will always be powerful.”

Several of the unions cited or quoted in this series are financial contributors to Capital & Main.

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Judging Janus

Judging Janus: Wisconsin’s Shadow

Co-published by AlterNet
Wisconsin provided early examples of scorched-earth labor policies. California unions took note.

Bobbi Murray




Illustration: Define Urban

The financial pressure from a pro-Janus
ruling will hamper unions from taking lead roles in policy debates on such issues as health care.

Mark Janus, an Illinois child-support worker, will soon argue before the U.S. Supreme Court that his free speech rights have been violated because he must pay “agency fees” to a union that, inter alia, negotiates contracts on his behalf. Last year California elementary school teacher Rebecca Friedrichs made the same First Amendment arguments at the high court against the teachers association to which she paid agency fees. The court deadlocked on Friedrichs’ complaint following the death of conservative Justice Antonin Scalia, but his replacement, Justice Neil Gorsuch, is widely expected to cast a decisive vote in favor of Janus and against public-sector unions.

Co-published by AlterNet

Should Mark Janus prevail in his Supreme Court case, public-sector employees in California and other states who now pay agency fees instead of union dues will be able to  opt out of any payment at all—even though they can still benefit from collective bargaining contracts and turn to the union with grievances, enjoying a free ride that drains union resources.

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The ruling would undermine the ability of public-sector unions—about half of U.S. organized labor—to set standards for wage and workplace conditions. The resulting financial pressure will hamper unions from taking lead roles in policy debates on such issues as health care. “The short-term [goal] is to reduce the ability to collect dues,” said Raphael Sonenshein, executive director of the Pat Brown Institute for Public Affairs. “The long-term aim is to weaken collective bargaining.”

Anti-union forces, often funded by corporate-backed foundations, have been on the attack for decades. One stunning victory was the 2011 passage of Wisconsin’s Act 10, that state’s “budget repair” bill. Republican Governor Scott Walker, long a vocal enemy of public-sector unions, introduced it to address a $3.6 billion budget shortfall.

By 2014 the once-robust Wisconsin State Employees Union had lost 60 percent
of its members.

Act 10 gutted public-sector union collective bargaining rights, leaving unions unable to negotiate wages—except raises attached to the cost-of-living—along with pensions, work conditions such as hours worked, sick leave and vacations. In other words, all the things that, for many, make it worth paying union dues.

The law also loosened restrictions on local governments’ hiring and wage policies, while allowing wage freezes and requiring higher employee health-care contributions.

Act 10 knee-capped labor as a political force in an historically union state — the first to recognize public-sector unions. By 2014 the once-robust Wisconsin State Employees Union had lost 60 percent of its members; its annual budget dropped from $6 million to $2 million. Then came the defections. In 2013 the nearly 6,000 prison guards staffing Wisconsin’s correctional facilities voted to leave WSEU for the newly-created Wisconsin Association for Correctional Law Enforcement, which cut dues from WSEU’s roughly $36 monthly rate to WACLE’s $18. WACLE now represents approximately 5,900 state security workers.

“The two major public-sector unions both lost about 80 percent of dues-paying members,” Joel Rogers, a University of Wisconsin, Madison professor of law and sociology, told Capital & Main. Rogers is also the founder of an organization called COWS, touted as “the national high-road strategy center” think tank.  Shrunken union budgets hobbled the ability to operate effectively on policy issues and support labor-friendly candidates. “They are basically nowhere near what they were in terms of political forces,” Rogers said.

Wisconsins weren’t in a mood to pay dues to unions without collective bargaining power. So they quit—bleeding unions of funds.

Employees whose livelihoods had taken a hit with budget cuts weren’t in a mood to pay dues to a union without collective bargaining power. So they quit—bleeding unions of funds.

“Which is what it was all about,” said Rogers.

Labor’s post-Act 10 relative absence from the Wisconsin policy arena, Rogers continued, has contributed to “an across the board assault on all public goods, starting with the K-12 system and the university—that was about 1.5 billion worth of cuts—environmental deregulation, the Department of Natural Resources stripped of powers and evacuated of scientists, endless stuff on deregulation [and] corporate liabilities have been reduced–increasing pressure to privatize public goods.”

Governor Walker, Rogers added, was backed by donors not widely known outside Wisconsin, but whose political footprint extends far beyond the state. They included Diane Hendricks, who made a fortune in the roofing-supply business. A backer of Scott Walker’s presidential PAC who donated $500,000 to defeat a union-backed recall effort against the governor, she is heard here in a YouTube clip asking Walker to turn Wisconsin into a red state; he replies that the first step is dealing with public-sector bargaining.

There was also Michael Grebe, a corporate attorney and former Marine, who chaired Walker’s gubernatorial and anti-recall campaigns. He recently retired as CEO of the Bradley Foundation, which from 2001 to 2009 donated nearly as much money to ultra-conservative causes as foundations backed by the Koch Brothers and the Scaife family combined. Efforts aimed at dismantling public infrastructure included: vouchers for private schools and cutbacks in public employee benefits and collective bargaining rights.

“We’re part of the right-wing movement,” Grebe told the Milwaukee Wisconsin Journal-Sentinel. “I don’t think it’s conspiratorial.”

The Wisconsin labor organizations that are now managing to hold their ground are those that had cultivated a strong base before Act 10 and are adjusting strategies to reach their members and different constituencies.

Michael Rosen is a past president of American Federation of Teachers Local 212, which represents 1,400 faculty and professional staff. “Strong unions that were very active and had a mobilized membership were able to maintain [their] membership,” Rosen said.

Heather DuBois Bourenane of Wisconsin Public Education Network reflects on her organization’s efforts to organize at parent and teacher house meetings, to ramp up use of Facebook and other digital channels, to pack public state budget meetings and to launch postcard campaigns and write letters to news editors.

She was a mother with two kids in the school system holding down two part-time university teaching jobs and a third assistantship when Act 10 passed. She had marched against it and now has a sharpened sense of the need to be on guard. “We hope people look at us in Wisconsin and lift us up as lessons learned.”

The Golden State boasts the largest number of union members in the country at 2.6 million, with 53 percent represented by public-sector unions. The American Federation of State, County and Municipal Employees is one of the two largest; Service Employees International Union is another. Janus victorious would not be nearly as onerous for California as Act 10 was for Wisconsin, as Act 10 effectively extinguished public-sector collective bargaining. Still, Janus would provide a huge anti-labor win.

One union began to look at ZIP codes—connecting home-care workers that live within blocks of one another
but who would never meet on the job.

“Rough estimates are that within three years, 20 to 40 percent of union members would stop paying dues,” said Fred Ross, a veteran organizer with the International Brotherhood of Electrical Workers Local 1245, which represents 2,500 public-sector transit and power workers throughout California. Unions would have to operate with between 20 and 40 percent less revenue, he added.

Unions are the largest source of campaign contributions to Democratic Party legislators—many of whom support such union-backed measures as worker protections, the $15 hourly minimum wage and immigrant-rights protections, said Steve Barkan, a Los Angeles-area campaign consultant. Janus “tips the scales further toward corporate interests,” he said.

Public-sector unions were under attack in California before Janus. Labor activists like Ross have been organizing for months, some for years, to counter its potential effects. Ross’ local has developed a targeted strategy based on a volunteer organizing committee. Some 250 union member organizers are charged with building relationships with 10 other members to explain the union’s role in winning benefits and protecting rights—and signing them up as voluntary dues-paying members.

Unions for home-care workers — those paid from public funds to work in private homes caring for low-income infirm persons — got hit hard by the 2013 Harris v. Quinn decision that has similarities to the Janus case. The 5-4 Supreme Court ruling said home health-care workers didn’t have to support their unions financially.

Harris is our Janus,” said Doug Moore, executive director of the United Domestic Workers Homecare Providers Union (UDW) and an AFSCME International Vice President. Before the Harris decision, “We had 68,000 [people] ” Moore said. “We lost 20,000 [fees-paying non-members] overnight” after the decision came down.

As the Harris decision approached, the union went into high-gear to connect with its base. Most of the millions of homecare workers in the U.S. are women of color; about one-quarter live below the poverty line and more than half need public assistance to get by.

The UDW created focus groups that discovered the home-care workers’ main concern was being able to obtain more hours for severely infirm clients like those with Alzheimer’s. Staff expanded existing efforts at In-Home Supportive Services worker orientation sessions in 21 counties around the state to make presentations. There were house visits, efforts to match Facebook profiles to email, a button on the website to sign up, going paperless and doing sign-ups via tablet—anything that would engage and listen to members, and convey the value of the union. There are now 72,000 dues-paying members — approaching double the UDW’s pre-Harris level.

The same story applied to SEIU Local 2015, which also represents public-sector home-care workers. Harris threatened Local 2015’s voluntary membership rates. The union began to look at ZIP codes—connecting homecare workers that live within blocks of one another but would never meet on the job. Facebook and Twitter helped. Membership increased by 48 percent, said Kim Evon, a Local 2015 vice-president. “Our demographic tends to be 70 percent women of color—and the average age is 55. We make a lot of assumptions that they are not plugged in but they are. Mail is that thing that piles up and gets stuck in the circulars from Vons.”

In a September organizing blitz, 16 different Southern California unions approached adjunct faculty at East Los Angeles College to join the California Federation of Teachers; meanwhile, SEIU 99, which organizes non-professional campus workers, informed child care providers of the benefits of belonging to a union. Private-sector janitors and security guards and other workers visited public-sector workers who are going to be impacted by Janus.

Alfonso Garcia was one of them. A union member since 1987, Garcia is currently an organizer for United Steelworkers Local 675, and has talked to part-time teachers, childcare providers and homecare workers in their homes to explain what a union does—about benefits, job security and meeting with management. “One voice, that’s just one person,” he said. “One thousand—that’s a better voice. The union gives us a voice.”

Several of the unions cited or quoted in this series are financial contributors to Capital & Main.

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Judging Janus

Judging Janus: Will California’s Unions Survive?

Co-published by International Business Times

Right-to-work forces see in Janus v. AFSCME a golden opportunity to cripple public-sector unions, while organized labor looks for a silver lining in the event the Supreme Court rules in Mark Janus’ favor.





Illustration: Define Urban

An upcoming Supreme Court case could cripple unions — or inspire a new wave of creativity.

Mark Janus, an Illinois child-support worker, will soon argue before the U.S. Supreme Court that his free speech rights have been violated because he must pay “agency fees” to a union that, inter alia, negotiates contracts on his behalf. Last year California elementary school teacher Rebecca Friedrichs made the same First Amendment arguments at the high court against the teachers association to which she paid agency fees. The court deadlocked on Friedrichs’ complaint following the death of conservative Justice Antonin Scalia, but his replacement, Justice Neil Gorsuch, is widely expected to cast a decisive vote in favor of Janus and against public-sector unions.

Co-published by International Business Times

A conservative U.S. Supreme Court may be preparing to drop a bomb on the country’s public sector unions, but California has heard it ticking for years. When the court agreed to hear Janus v. American Federation of State, County and Municipal Employees, Council 31, Joshua Pechthalt, president of the California Federation of Teachers (CFT), said his union and others in the state had already been working to absorb the blow. The case could strip public agency unions of much of their funding, and he admitted the effects on California’s labor movement could be devastating. Or, for some of the same reasons, they could be reinvigorating.

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“I think [Janus] is going to hurt, but it need not be the end of the world,” said Pechthalt. “Frankly, we’re going to have to do the kind of organizing that we should have been doing all these many years. I think the labor movement got a little bit complacent.”

In states like Wisconsin, Kentucky, Iowa and Michigan, where Republican state administrations have slashed union power in recent years, the Janus case looks to be a crippling blow in a national turn against unions. But California is going the other way, passing pro-union legislation such as a 2017 bill guaranteeing union access to government employees during job orientations. The Golden State is an exception in the national labor movement’s fortunes, and Janus will put that status to the test.

“If unions play things wonderfully, Janus will just make life more difficult for them. If they don’t, it’ll just be a disaster.”

While non-union workers in a unionized department are not required to pay full union dues,  under a unanimous 1977 U.S. Supreme Court case called Abood v. Detroit Board of Education, they must pay lesser fees to support contract bargaining, from which they benefit.

In a statement to Capital & Main, Diana Rickert of the Illinois-based Liberty Justice Center, which is representing Mr. Janus, wrote: “Today, Mark Janus and more than 5.5 million other government employees in America are forced to pay money to a union in order to keep their jobs . . . The First Amendment gives everyone the right to choose which organizations they will and won’t join or support financially.”

Momentum for this argument has been building for years. In the 2014 U.S. Supreme Court case Harris v. Quinn, the court ruled that homecare workers in Illinois did not have to pay agency fees because they were not truly public employees, and Justice Samuel Alito, writing for the majority, basically invited more challenges to Abood.

The two organizations representing Janus, including the National Right to Work Legal Defense Foundation, seem poised for a victory. Nelson Lichtenstein, a labor historian at the University of California, Santa Barbara, pointed out the potential danger for organized labor, noting that from one-third to about one-half of all people represented by a union are not members of that union, and may choose not to pay agency fees.

“If unions play things wonderfully, it will just make life more difficult for them. And if they don’t, it’ll just be a disaster,” Lichtenstein added.

“This is a new period of American history. We have to win people over to the fact that we’re stronger when we stick together in a union.”

And so all eyes turn to California. Though it does not have the high percentages of union members found in New York, Alaska and a few other states, California’s labor movement has a reputation as the most innovative in the country.

Ruth Milkman, a labor expert at the City University of New York and a former longtime professor at the University of California, Los Angeles, points out that the state earned this reputation, paradoxically, by having a relatively backwater movement during the height of industrial unionization. With less heavy industry than states like Michigan, Ohio or Pennsylvania had earlier in the 20th century, the labor movement in California – and particularly the Service Employees International Union, or SEIU – would later focus sharply on organizing the service sector, with its hospital and government workers, and even the entertainment industry.

When globalization shifted heavy manufacturing to Mexico, South America and Asia toward the end of the last century, gutting powerful unions like the United Auto Workers and the United Steelworkers, service unions were poised to grow and California knew better than anyone how to do it.

“In the late 20th century and continuing into the new century, the SEIU became the engine of growth for organized labor,” said Milkman.

California is the place, Milkman notes, where new classes of workers are created. She points to the late-1990s SEIU campaign to recruit home health-care workers. They were categorized as independent contractors paid by Medi-Cal and thus not eligible for unionization, but the SEIU and others prevailed on the administration of Gov. Gray Davis and the state legislature and passed a 1999 law making these workers public employees and changing their eligibility. This precipitated what Milkman called the biggest National Labor Relations Board election in American history, adding that it brought nearly 100,000 homecare workers into the SEIU – a move that has since been replicated around the country, and then with publicly funded childcare workers, as well.

Similarly, California unions have a legacy of organizing immigrant labor, building off the pioneering efforts of Cesar Chavez and the United Farm Workers. This work is still evident in UNITE HERE’s success in organizing hospitality workers across California, as well as the the SEIU’s Justice for Janitors campaign that began in the late 1980s and continues today. California unions have also been firmly behind the campaign for a $15 hourly minimum wage, which many see as a first step to organizing fast-food workers.

Other unions in both the public and private sectors have also been major drivers of California’s growth in unionized workers, including the California Teachers Association, AFSCME, the California School Employees Association, the California Faculty Association, the United Food and Commercial Workers, the California Nurses Association, the United Nurses Associations of California and IBEW.

“A lot of the success that [California unions have] had over the past two decades can be attributed to their success in the political arena, and that has created a more stable environment, particularly for public sector unionism, but also for unionism generally,” said John Logan, a labor historian at San Francisco State University. “While in the rest of the country, at the state level, there’s been a number of very brazen attacks on unionism, particularly after [Republican electoral gains in] 2010.”

Post-Janus, California unions will certainly lose some of the money that gave them that political clout, but they still have the benefit of a pro-union state government.

“In contrast to Democratic Party campaigns or Bernie Sanders rallies, unions don’t go away.
That is important.”

California bucks national trends by still creating quite a bit of pro-union legislation. Logan noted there have been proposals about changes to the right of fair representation, so that non-union members in a post-Janus era would have to either pay for the union to represent them in a grievance or have the option of hiring a private attorney. But California, like every other state, is restricted by the National Labor Relations Act, so there are only so many legislative responses possible. The principal response to Janus is a call for old-school grassroots organizing.

“A number of our unions and our affiliates are using this as a time to go back to basics,” said Angie Wei, chief of staff at the California Labor Federation. “Which is one-on-one conversations, member-to-member, at the worksites. And building a permanent structure for the union … building power from the ground up.”

“Some of the [agency fee] people have just never been talked to about the union and don’t understand it,” said Bob Schoonover, President of SEIU Local 721 in Southern California. Like the public in general, he said, these workers are largely unaware of union influence in matters beyond members’ wages and benefits. For instance, California unions are also solidly behind single-payer health care, and property tax reform and increased school budgets.

Schoonover pointed out that his local was part of a health-care reorganization under the Affordable Care Act in Los Angeles County, which brought public health, mental health and the hospital system under one umbrella, making it more efficient for everyone. This is how unions can demonstrate their importance to all working people.

“The thing about a union, [like] the NRA or the Chamber of Commerce, is they’re there all the time,” said Nelson Lichtenstein. “In contrast to Democratic Party campaigns or Bernie Sanders rallies, they don’t go away. They have their people in there lobbying. That is important.”

Planned Parenthood is another one of these permanent institutions, Lichtenstein noted, but he added that progressives have very few others. The right has more: mega-churches, business groups, phalanxes of think tanks. So both unions and Planned Parenthood are under attack all the time. “I link the two because both are kind of organizational, social institutions that are widespread and have constituencies. The right understands that’s a threat.”

The CFT’s Joshua Pechthalt said it’s a defining moment for labor. “This is sort of a new period of American history: When people don’t see a collective response as being valuable, or possible, they opt for individual answers,” he said. “We have to win people over to the fact that we’re stronger when we stick together in a union.”

Several of the unions cited or quoted in this series are financial contributors to Capital & Main.

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Judging Janus

Judging Janus: What Happens to California’s Progressive Legislation?

California’s 1.4 million-member public-sector unions are the key force that has pushed the state toward increasingly progressive policies. The Supreme Court could seriously diminish that force.

Gabriel Thompson




Illustration: Define Urban

Labor Historian:
“The key thing about unions is not the money, but the energy that comes out of the members.”

Mark Janus, an Illinois child-support worker, will soon argue before the U.S. Supreme Court that his free speech rights have been violated because he must pay “agency fees” to a union that, inter alia, negotiates contracts on his behalf. Last year California elementary school teacher Rebecca Friedrichs made the same First Amendment arguments at the high court against the teachers association to which she paid agency fees. The court deadlocked on Friedrichs’ complaint following the death of conservative Justice Antonin Scalia, but his replacement, Justice Neil Gorsuch, is widely expected to cast a decisive vote in favor of Janus and against public-sector unions.

Co-published by The American Prospect

In 2012, as Election Day neared, polls showed dwindling support for California’s Proposition 30, which sought to avoid a crippling $6 billion cut in the state’s public education system. Without Prop. 30, Governor Jerry Brown warned, many more teachers would be laid off from a system already racked by cutbacks, and the school year would likely be slashed by three weeks.

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Despite a $36 million donation from Republican activist Charles Munger Jr. to a committee opposing both Prop. 30 and another ballot measure, along with a competing proposition sponsored with $44 million from his sister, Molly Munger, voters passed the initiative by a 55 to 46 margin. By doing so, they rescued the school system by reinvesting billions of dollars into preschool, K-12 and community colleges. And voters did so, in large part, thanks to the political muscle of the state’s public sector unions. In the weeks leading up to the election, armies of union members fanned out across the state to knock on doors, while three unions—the California Teachers Association, the statewide council of the Service Employees International Union, and the American Federation of Teachers—spent a combined $26 million in support of the initiative, serving as a counterbalance to the deep pockets of the Mungers and other wealthy donors. Last year, as Prop. 30 was set to expire, unions pushed through Proposition 55, which extended the income tax on high earners for another dozen years.

Health-care Advocate:
“We are concerned about attacks on the labor movement, because they would weaken the strength of patient and community voices.”

“The truth is, in the last 25 years, no major progressive proposition has passed without labor being a primary donor,” said Kenneth Burt, who retired last month after spending two decades as the political director of the California Federation of Teachers. A 2012 study of public-sector union influence over California ballot initiatives since 1980, prepared by the conservative Manhattan Institute, came to the same conclusion. “Whenever a proposal was especially important to the unions,” its author wrote, “they almost always won.”

California’s 1.4 million member-strong public-sector unions are the key force that has pushed the state toward increasingly progressive policies. They have set California on the path to a $15 hourly minimum wage, helped pass a “Sanctuary State” bill to protect undocumented immigrants, supported a $4 billion affordable housing bond on next year’s ballot and spurred legislators to contemplate universal health-care legislation.

But what would happen to such legislation if, as expected, the Supreme Court rules against them in the Janus case? Would it even be proposed?

In ballot-measure fights, the opposition to workplace, environmental and health-care reform is typically well funded, and if union membership and dues were to shrink by, say, one-third, they could suddenly find themselves outgunned.

“This is trench warfare—you win by a few inches here and there. Reducing union dues will hurt.”

“We are concerned about attacks on the labor movement, because they would weaken the strength of patient and community voices,” said Anthony Wright, the executive director of Health Access, a statewide health care advocacy coalition. Wright noted that labor union support had been critical in efforts to expand coverage in California, and pointed out two recent legislative achievements in which labor played a key role. Last year, Assembly Bill 72, which prevents patients from being hit with surprise medical mills, was passed. And last month, Governor Brown signed Senate Bill 17, which makes prescription drug prices more transparent. (Drug companies spent $16.8 million in opposition of SB 17.)

In 2010, the CFT’s Kenneth Burt chaired the group that sought to pass Proposition 25, which allowed the state legislature to pass the budget by a majority vote, replacing the earlier two-thirds requirement.

“That two-thirds requirement meant that even during flush years we had to make concessions to the Republicans—and those concessions were tax breaks to the rich and cuts to social programs,” said Burt. The forces against the measure included Chevron, Philip Morris and the California Chamber of Commerce, which spent a combined $17.7 million. The union-led coalition invested nearly as much, $15.2 million, and they won. But if California’s public-sector unions shrink, such fights could become lopsided defeats.

Nelson Lichtenstein, a labor historian at the University of California, Santa Barbara, cautions that one shouldn’t think of the union’s power—in California and elsewhere—as primarily being its lobbying ability or financial resources. “The key thing about unions is not the money,” Lichtenstein said, “but the energy that comes out of the members. Having a lot of cash is always second best.”

“The reason that conservatives hate unions is not because they are winning huge raises all the time,” he added. “It’s because day in and day out, they are always there. Activist movements get a lot of headlines, but the union is an institution. This is trench warfare—you win by a few inches here and there. Reducing union dues will hurt that.”

Several of the unions cited or quoted in this series are financial contributors to Capital & Main.

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Judging Janus

Unions Get Ready to Fasten Their Seatbelts After ‘Janus’

According to Seattle University law professor Charlotte Garden, today’s Supreme Court decision won’t be the end of the legal assault on the public-sector labor movement.

Bill Raden




Illustration: Define Urban

“The most surprising thing was the court’s signaling that it might not be done with big decisions that affect how public-sector unions can be organized.”


In what could be the worst setback to workers’ rights since 1947’s Taft-Hartley Act, the U.S. Supreme Court on Wednesday dealt a potentially crippling blow to the nation’s public-sector unions in Janus v. AFSCME. The 5-4 decision struck down Abood v. Detroit Board of Education, the 41-year-old precedent that has allowed public-sector unions to require all employees at a workplace to equally bear the costs of collective bargaining through “agency” or “fair share” fees.

The National Right to Work Legal Defense Fund, on behalf of Mark Janus, a child support specialist employed by the state of Illinois, argued that forcing workers to help pay for even the nonpolitical administrative costs of collective bargaining operations infringes on their First Amendment right to freedom of speech.

The court agreed. Writing for the conservative majority, Justice Samuel Alito said that the agency fee arrangement “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

At issue now are laws in 22 states that allow fair share fees, as well as employment contracts and a host of workplace rules covering nearly eight million unionized public-sector workers. But the ruling’s crushing financial impact to unions will curtail their ability to lobby and support worker-friendly candidates, who are predominately Democrats.

According to Seattle University associate professor of law Charlotte Garden, today’s court decision won’t be the end of the legal assault on the public-sector labor movement. Capital & Main spoke by phone with Garden in an interview that has been edited for concision and clarity.

Capital & Main: What is the biggest threat to labor from today’s decision?

Charlotte Garden: This decision will have vicious-cycle effects on unions in two ways. One is just the microeconomics: If you’re a worker that’s represented by a union, you now have an economic incentive to opt out of paying dues, even if you like the service you get from your union and value it. Workers who remain members and are still paying may increasingly feel that they are being overburdened by the cost of paying for their free-riding coworkers and then decide themselves to opt out of paying for representation. And so the cycle goes.

On a more macro level, we could easily see this decision contribute to the election of politicians who will reduce the scope of public-sector or private-sector bargaining rights through the legislative process. There’s research showing that right-to-work laws depress Democratic vote share, and so today’s decision can have the potential to harm the ability of working people to elect candidates that will enact policies beneficial to them.

Did the decision surprise you?

The most surprising thing was the court’s signaling that it might not be done with big decisions that affect how public-sector unions can be organized. The court seemed to indicate that it was open to a challenge to exclusive representation, which is the system that is used in the private-sector and in the entire public-sector with the sole exception of teachers in Tennessee.

Doesn’t the decision also open up the possibility that employees within a public-sector workplace could begin suing government employers outside the union, over, say, better benefits or other workplace issues?

Yes — it could well be the case that if a public employer tried to fire or discipline teachers or other public employees that engaged in a walkout or some other collective action, that those teachers would have a much stronger First Amendment defense than they would have had before today’s decision. That raises the question of how consistently the decision is going to be applied, but I agree the argument is there.

In her blistering dissent, Justice Elena  Kagan predicted that overturning Abood would cause real-world chaos for the laws and worker contracts based on Abood. Is that a genuine fear?

I think it is. Justice Kagan points out that in a worst-case scenario — in a contract that doesn’t have a severability clause — this might mean going back to the drawing board on the entire contract. So certainly unions and public employers are facing some turbulent times as they try to grapple with those fallouts of today’s decisions.

There are current court cases that challenge other aspects of public-sector collective bargaining. Here in California, they include Yohn v. CTA, which also targets exclusive representation. Are there other significant anti-labor cases that we should be aware of?

We should expect attacks. States are taking [steps] in response to Janus, doing things like allowing unions to put on orientations for new workers — New York [has] adjusted the scope of the duty of fair representation as applied to nonmembers. I would expect cases challenging all of those innovations on First Amendment grounds.

A former Texas solicitor general who, like most of the conservative majority, is also a member of the right-wing Federalist Society, just brought class action suits in California and four other states, asking for the recovery of all agency fees already paid by dissenters. Does a case like that stand a chance because of Janus?

We have a bit of precedent here. There were a number of lawsuits trying to recover back-dues from before the day Harris v. Quinn was decided, and those cases lost. And so I think it’s likely the same thing will happen here — unions won’t be on the hook for agency fees that they collected before today’s ruling.

How much of Janus is rooted in ideology rather than law? Has something fundamental shifted since the court decided Abood?

It’s undeniable that ideology plays a role in law. One thing is that a Republican president will appoint Supreme Court justices who see law in a way that is favorable to Republicans, and so you’ll get this kind of Balkanization of the judiciary. And then another way that plays out is the kind of attitudes or the receptiveness of different justices to some of the fundamental premises in a case like this.

When looking at the way this conservative court majority has flexed the First Amendment to choke the collective voice of public employees, one can’t help but see it in the light of its 2010 Citizens United decision, which has had a similar partisan political impact. Is that a fair comparison?

Your point about Citizens United is a really apt one. Citizens United freed corporations and unions to participate in politics in this very unbridled way, except that there were already restrictions in place on what money the unions could spend in politics, because of the rule from Abood. Now there’s no equivalent rule for corporations restricting their ability to spend, say, shareholder value when shareholders object. So the supposed parity between unions and corporations in Citizens United was always sort of illusory, and now even more so, because unions are going to have to spend dues money paid by members to fund the representation of free riders instead of other things, including participating in politics.

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