What the Labor Movement Could Do If the Supreme Court Rules Against Fair Share Fees in Janus

How might the U.S. labor movement respond if the Supreme Court strikes down Abood and rules against fair share fees? ILEPI’s Frank Manzo IV takes a look.

Last week, the Illinois Economic Policy Institute and the Project for Middle Class Renewal at the University of Illinois released a new study which found that the U.S. Supreme Court’s ruling in Janus v. AFSCME 31 could have devastating effects on worker paychecks and the national economy. The report was covered in The Wall Street Journal.


Click here for a press release of the study and click here for the full report.

The  Janus case is a challenge to an Illinois state law– supported by a 41-year Supreme Court precedent established in Abood v. Detroit Board of Education in 1977– that requires public sector workers represented by unions to pay fees (called “fair share fees”) that help cover the cost of the collective bargaining services that they receive from the union. If the Court strikes down Abood, workers would be able to “free ride” and receive services, benefits, and representation from unions for free. The ruling would weaken public sector workers and impact about 5 million state and local government employees in 23 states and the District of Columbia.

So the natural follow-up question becomes: What might the U.S. labor movement do in response to a 5-4 decision against fair share fees?

Janus decision against fair share fees would pose a threat to labor organizations and union members in America. The ruling would be the largest change to collective bargaining rights in the country since the Taft-Hartley Act in 1947, which prohibited secondary boycotts and strikes, closed shops, and allowed for passage of so-called “right-to-work” laws in states. The response to Janus could be critical to the long-run survival of the U.S. labor movement and the American middle class.

Here are three ways that the U.S. labor movement would be likely to respond to a Janus decision that would effectively implement “right-to-work” conditions in the public sector.

1. The primary response to Janus by labor unions would be to engage and educate rank-and-file members. Instead of functioning in the background and providing reactive representation for workers in times of need, public sector unions can become more proactive. Many unions would increase their resources devoted to organizing. More unions may include rank-and-file members in contract negotiations, day-to-day administration, and political actions and decisions in efforts to increase worker activism. Moreover, unions may also provide classes to members on U.S. labor history or educate their members on the wage and fringe benefits of being union members. In addition, some unions may provide a tiered benefits package, with members-only benefits– such as discounts at local stores or on premiums for insurance policies– that are not provided to nonmembers. These and similar responses would increase the chances of a high-participation, high-membership public sector union in the wake of a Janus decision that permits free riding in the public sector.

2. In addition to engaging and educating rank-and-file members, labor unions are likely to bring new legal cases in the wake of Janus. For example, if the Supreme Court rules in Janus that collective bargaining in the public sector is inherently political speech protected by the First Amendment, then state and local units of government that forbid collective bargaining infringe on the free speech rights and the freedom of association rights of union members. This would implicate laws such as 2011 Wisconsin Act 10, which may then be deemed unconstitutional. A second response may be to bring lawsuits against state and local governments which invest pension funds– which are contractually owed to workers– in corporations that contribute to political activities with which public sector workers disagree. Similarly, taxpayers may now be granted First Amendment rights to demand that their taxpayer dollars are not used for lobbying or political advocacy, such as by local governments to hire lobbyists to petition for policies with which taxpayers disagree.

3. The labor movement may also choose to replicate the success of the recent teachers’ strikes in “right-to-work” states like West Virginia, Oklahoma, Arizona, and North Carolina. In February and March of 2018, public school teachers and other school employees in the state’s 55 counties went on strike, refusing to return to work until lawmakers provided a 5 percent raise. This concerted action occurred despite the fact that teachers’ strikes are illegal in West Virginia. Lawmakers approved a 5 percent raise following a two-week demonstration. Then, thousands of Oklahoma teachers walked out, protesting a decade of low and stagnant pay and demanding higher salaries as well as better funding for their schools. The teachers won a $6,000 bump in pay. Then, a few weeks ago, teachers in Arizona earned a 10 to 20 percent wage increase and additional funding for support staff following a week-long walkout. And on May 16, teachers in North Carolina rallied for better pay, more funding, and a Medicaid expansion in the state. While these short-lived movements are less effective at securing gains for workers than labor organizations, some public sector workers may have no other recourse than to organize mass demonstrations if the Supreme Court rules as expected.

In fact, the 2018 wave of teachers’ strikes is likely a preview to future U.S. labor relations in the public sector if the Supreme Court ends fair share fees. In the previous 1977 Abood case, the Supreme Court ruled in favor of fair share fees because the state had a “compelling interest” in fostering labor peace by ensuring that public sector unions had collective bargaining rights. If the Court reverses Abood, the Supreme Court’s decision in Janus would weaken the bargaining power of workers, which would cause public sector pay to fall and could incite more labor unrest, mass strikes, and other resistance in response.


Frank Manzo IV is the Policy Director of the Illinois Economic Policy Institute. For more, please visit www.illinoisepi.org.

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