Half of the labor movement could go “right-to-work” depending on the outcome of a pending Supreme Court decision. In Janus v. AFSCME, the justices are weighing whether union shop contract clauses that compel represented workers to join or pay a representation fee should be illegal in the public sector. With 7.2 million union members’ participation at stake, the case represents the latest in the unrelenting corporate assault on union power and financial resources.

Part of what the right wing is exploiting in this case is that for public sector workers, their employer is, in some sense, “the government.” That makes their union contracts more vulnerable to challenges from outsiders. Indeed, public sector workers won the right to negotiate for the same union shop clause that private sector unions have enjoyed for over a century in a 1978 Supreme Court case called Abood v. Detroit.

That long-settled precedent has been under sustained attack in recent years, with Supreme Court Justice Samuel Alito leading the charge. He inserted the argument—that every interaction that a union has with the government
is inherently political—into the Court’s 2014 decision in Harris v. Quinn. That decision maligned unions representing state-funded, but home-based, child and elder care work- ers and took away their right to bargain for the union shop.

In Harris, Alito strongly signaled that he and the rest of the conservative Court majority would support a court challenge to mandatory union fees as “compelled” political activity that violates the First Amendment. Lo and behold, Friedrichs v. California Teachers Association rock- eted through the courts the following year. It deadlocked in a 4-4 tie only because Justice Antonin Scalia died in 2015.

Two short years, and one stolen Supreme Court seat later, Janus is in front of the Court with the same stale arguments backed by the same deep pockets.

The anti-union argument is ironic because judges have spent most of U.S. history denying workers any kind of free speech right to form a union. Before Congress passed the National Labor Relations Act (NLRA) in 1935, courts were more likely to treat unions as criminal con- spiracies that interfered with employers’ property and contract rights. But even the NLRA, which provides legal protections for union organizing and collective bargaining, does not recognize a First Amendment right to engage in union activity. Instead, it bases those rights on Congress, and its power to regulate interstate commerce—not in the civil and constitutional rights of workers.
As a result, corporations enjoy more free speech protections to beat up on work- ers than workers and their unions have to organize. An employer can force workers to attend mandatory anti-union presentations or be fired, and unions have no comple- mentary right to respond. Workers can be fired for making “disloyal” statements about their company in the course of a protest. And the scope of issues that unions can meaningfully demand to bargain over has been significantly narrowed.

A ruling against AFSCME in Janus could provide unions with a solid First Amendment basis to challenge these and other inequities in labor law. But con- servative judges could also shamelessly wave away any argument about why free speech shouldn’t make collective bargain- ing fairer for workers, while beefing up corporate power. Already, some are concerned that anti-union lawyers will next argue that col- lective bargaining regulated by the NLRA is another “inherently political” interaction between unions and the government, making any union shop—even in the private sector—unconstitutional. That this argument might even see the light of day shows how far the right wing has pushed the American political conversation.

U.S. unions are bracing for impact. Unions with substantial public sector memberships have beefed up their mem- ber-to-member organizing programs. Their immediate goal is convincing current fee-payers to join and pay dues.
This is not a drill or a false alarm, and stewards play a key role in keeping workplaces, bargaining units and unions together as all working people—union and not—come under assault. Here are three things to do:

  1. Talk about Janus and its effect on our communities, unions, and workplaces. Unionist.com has resources from across the labor movement and around the media.

  2. Expect a well-funded direct mail blitz from union busters encouraging mem- bers to quit their union to “give themselvesa raise.” Member-to-member organizing is critical for counteracting right-wing propaganda portraying unions as “ineffective” third parties Here, shop stewards must be the first line of defense.

  3. Express solidarity with all workers. Show up at another union’s picket line or rally, sure. Is there a demonstration against workplace raids by ICE in your community? Those are workers, too. Be there for them, in your union colors.

[This article originally Volume 29, Issue 2 of Steward Update.]