The Supreme Court Ruled Against Public Sector Workers. Now What?

How might the U.S. labor movement respond to the Supreme Court striking down Abood and ruling against fair share fees in Janus? ILEPI’s Frank Manzo IV takes a look.

In May, the Illinois Economic Policy Institute and the Project for Middle Class Renewal at the University of Illinois released the only study to forecast the labor market effects of the 5-4 Supreme Court’s ruling in Janus v. AFSCME 31. 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 was 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. With the Court striking down Abood, workers are now able to “free ride” and receive services, benefits, and representation from unions for free. The ruling will weaken public sector workers and impact about 5 million state and local government employees in 22 states and the District of Columbia.

Here are three ways the U.S. labor movement is likely to respond to the 5-4 decision imposing “right-to-work” conditions in the public sector.

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

1. The primary response to Janus by labor unions will 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 will 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 the 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, with the Supreme Court ruling 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 could 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, teachers in Arizona earned a 10 to 20 percent wage increase and additional funding for support staff following a week-long walkout. 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 after Janus.

In fact, the 2018 wave of teachers’ strikes is likely a preview to future U.S. labor relations in the public sector following today’s decision. 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. Now that the Court has overturned Abood, the decision weakens the bargaining power of workers, which will cause public sector pay to fall and may 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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