The Progressive u 17 Toward the end of the oral argum.docx

The Progressive u 17
Toward the end of the oral argument in a pivotal labor case
before
the U.S. Supreme Court last February, Justice Sonia Sotomayor
made a comment that cut to the heart of the matter.
“You’re basically arguing, do away
with unions,” Sotomayor said.
The case, Janus v. American Feder-
ation of State, County, and Municipal
Employees, Council 31, concerns the
right of public-employee unions to
collect fees from nonunion workers.
The plaintiff, Mark Janus, is an Illinois
state public employee who refuses to
join AFSCME, which acts as the bar-
gaining agent for rank-and-file employ-
ees in his department, and objects to
having “fair-share” fees deducted from
his monthly paychecks.
Sotomayor’s remark was directed
to Janus’s attorney William Messenger.
It echoed the concerns of progressive
activists across the country, who say the
case poses an existential threat to pub-
lic-sector unions, which rely on fair-
share fees from nonmembers to defray

the costs of collective bargaining and
contract administration.
Messenger, a staff lawyer for the
National Right to Work Legal Defense
Foundation and member of the conser-
vative Federalist Society, hemmed a bit
at the justice’s bluntness, but he stuck to
the central position he had advanced in
his argument and briefs: that the case
was about the First Amendment. He
insisted that Americans have not only
an affirmative right to speak but also
Bill Blum is a Los Angeles lawyer and a former state of
California administrative law judge who writes at Truthdig.com.
The Supremes v. Unions
Rulings Expose High Court’s Anti-Worker Bias
By Bill Blum
GW
EN
KE
RA
VA
L
https://www.supremecourt.gov/oral_arguments/argument_transc
ripts/2017/16-1466_gebh.pdf
https://assets.documentcloud.org/documents/4594026/Transcript
-page.pdf

http://www.scotusblog.com/case-files/cases/janus-v-american-
federation-state-county-municipal-employees-council-31/
https://fedsoc.org/contributors/william-messenger-1
https://www.sourcewatch.org/index.php/National_Right_to_Wor
k_Legal_Defense_Foundation
k_Legal_Defense_Foundation
18 u August / September 2018
a passive right not to be compelled to
speak. And making nonunion public
employees pay fees to a union, he and
others contend, amounts to compelled
speech.
In late June, the Supreme Court ac-
cepted this reasoning and sided with
Janus, ruling 5-4 that public-employee
unions may not collect fair-share fees.
Without these revenues, many unions
believe their coffers will dry up, and
their membership rolls will shrivel.
In other words, Sotomayor grasped
the essence of the issue.
As of the date the decision was
handed down, twenty-eight states had

adopted right-to-work laws prohibiting
fair-share deductions. The remaining
twenty-two and the District of Co-
lumbia permitted them for some five
million state and local government
employees. In effect, the decision has
turned the country’s entire public sec-
tor into one giant right-to-work juris-
diction.
The majority opinion in the Janus
ruling was written by Justice Samuel
Alito, with Trump appointee Neil Gor-
such, who replaced the late Antonin
Scalia on the bench last year, siding
with the majority. Also in the majority
were Chief Justice John Roberts and
Justices Clarence Thomas and Anthony
Kennedy. All were appointed by Repub-
lican Presidents.
Alito concluded that even though
mandatory fair-share fees cannot be
used for political purposes, they are
nonetheless a form of coercion. “It is
hard to estimate how many billions of
dollars have been taken from nonmem-
bers and transferred to public-sector
unions in violation of the First Amend-
ment,” Alito wrote. “Those unconstitu-
tional exactions cannot be allowed to
continue indefinitely.”
The ruling reversed a 1977 Su-
preme Court precedent—Abood v. De-
troit Board of Education—that upheld

the fair-share system against a First
Amendment challenge.
Yet the outcome in Janus was en-
tirely expected, given the animus to-
ward unions expressed by the Roberts
Court in recent years (see sidebar). In
two prior cases—Knox v. SEIU in 2012
and Harris v. Quinn in 2014—the court
found that the payment of union dues
by public employees is a form of polit-
ical speech subject to the constraints of
the First Amendment.
In 2016, after Scalia’s death, the Su-
preme Court deadlocked 4-4 in another
appeal, Friedrichs v. California Teachers
Association, involving fair-share assess-
ments. With Janus, the issue has now
been laid to rest. Henceforth, in the
estimation of the nation’s highest judi-
cial body, all spending by public-sector
unions will be considered political.
Even before the Janus decision, no one could be forced to join a
union.
In non-right-to-work jurisdictions,
they could simply be assessed a fee de-
signed to equitably distribute the cost
of union activities among those who
benefit through higher wages, pensions,
health insurance, and assistance with
workplace grievances and disciplinary
hearings.
While the Janus ruling doesn’t af-

fect private-sector unions, it will have
a potentially devastating impact in the
public sphere by encouraging more
government employees to become
“free riders” in terms of union repre-
sentation. In most jurisdictions, even
in right-to-work states, unions have a
duty to act as the exclusive representa-
tive of all employees within a bargain-
ing unit, members and nonmembers
alike. It takes money to do that, and
without fair-share fees, public-employ-
ee unions will be hard-pressed to meet
their obligations.
“Within three to five years, we’ll
see significant membership declines,”
predicts Robert Bruno, who directs
the Labor Education Program for the
School of Labor and Employment Re-
lations at the University of Illinois, Ur-
bana-Champaign. Together with Frank
Manzo, Bruno authored a detailed
study for the Illinois Economic Policy
Institute in 2017 about the likely impact
of the Janus case. They predicted that a
right-to-work win would:
• Reduce union membership among
state and local public employees by
8.2 percentage points, or 726,000
union members.
• Decrease public-sector union-

ization by 189,000 members in
California, 136,000 members in
New York, and 49,000 members
in Illinois.
• Reduce the union membership
rate among teachers by 4.8 per-
centage points—a loss of 88,000
members for teachers unions.
• Disproportionately impact Afri-
can American workers, who are
more likely to work in state and
local government and be union
members.
“Right-to-work laws,” Bruno says,
“also have a depressing effect on wages.”
In another research paper published
before the Janus decision, he and
Manzo reported that workers in Indi-
ana, Michigan, and Wisconsin, all of
which have passed right-to-work laws,
earned 8 percent less per hour in 2016
than their counterparts in the adjacent
non-right-to-work states of Illinois,
Minnesota, and Ohio.
Other researchers have made sim-
ilar findings. According to a survey
conducted by the Century Foundation,
unionized teachers made an average
of 24.7 percent per hour more than
their nonunion colleagues. Nationwide,
median earnings for two-income, non-
union families are $400 a week less than

for union families. The plain fact is that
unions are good for workers.
The National Right to Work Legal
Defense Foundation, which represent-
ed Mark Janus along with the rightwing
Liberty Justice Center, is an arm of the
National Right to Work Committee,
https://fedsoc.org/events/preview-janus-v-american-federation-
of-state-county-and-municipal-employees
https://www.nytimes.com/2018/06/27/us/politics/supreme-court-
unions-organized-labor.html
https://employment.findlaw.com/wages-and-benefits/right-to-
work-laws-by-state.html
https://illinoisupdate.com/2018/06/27/what-the-labor-
movement-could-do-in-response-to-janus/
https://www.supremecourt.gov/opinions/17pdf/16-
1466_2b3j.pdf
https://www.law.cornell.edu/supremecourt/text/431/209
https://www.law.cornell.edu/supremecourt/text/431/209
https://www.oyez.org/cases/2011/10-1121
https://ler.illinois.edu/?page_id=117
https://illinoisepi.files.wordpress.com/2018/05/ilepi-pmcr-after-
janus-final.pdf
https://illinoisepi.files.wordpress.com/2018/05/ilepi-pmcr-after-
janus-final.pdf
https://ler.illinois.edu/wp-content/uploads/2017/03/RTW-in-the-
Midwest-2010-2016.pdf
https://newrepublic.com/article/122012/century-foundation-
study-how-unions-increase-wages

http://gawker.com/fact-union-members-earn-more-money-
1710400622
https://libertyjusticecenter.org/
k_Committee
The Progressive u 19
which has long set its sights on crip-
pling trade unions. It was founded
in 1955 by former New Jersey Con-
gressman Fred Hartley, co-sponsor of
the anti-union Taft-Hartley Act, and
included Birch Society stalwart Fred
Koch, the father of David and Charles.
In 2012, the Kochs’ Freedom Part-
ners group funneled $1 million to the
committee. Other financial backers
include the Walton Family Founda-
tion (of Walmart), the Coors family’s
Castle Rock Foundation, Wisconsin’s
Bradley Foundation, the John M. Olin
Foundation, and the Searle Freedom
Trust. Since the 1990s, The Guardian
reported, the Bradley Foundation has
donated $30.5 million to twenty-four
organizations that have supported law-
suits against public unions.
It’s easy to see why the political right is focused on public-
employee unions.
In the private sector, the unionization
rate has dwindled to 6.5 percent. The

public sector, by contrast, boasts a
unionization rate of 34.4 percent. Not
coincidentally, unionized workers are
more likely to vote Democratic. A
Brookings Institution analysis pub-
lished earlier this year found that from
1980 to 2016, right-to-work laws have
decreased the Democratic presidential
vote share by 3.5 percent.
And while fair-share fees cannot be
used for political purposes, union dues
can be channeled through political ac-
tion committees and super PACs. As
their membership ranks have grown,
public-employee unions have become
a key source of funding for Democratic
office seekers. During the 2016 election
cycle, AFSCME alone donated nearly
$16 million to pro-Democratic super
PACs, party committees, and candi-
dates.
From a legal perspective, the Janus
decision is little more than a smoke-
screen to obscure the right wing’s politi-
cally motivated attacks. “The fact is that
the Janus majority opinion is not about
The Roberts Court’s Hostility to Labor
Since John Roberts was appointed Chief Justice of
the Supreme Court in 2005, the court has been hard
on labor unions and the rights of working people.
Here are some examples:

Ledbetter v. Goodyear Tire and Rubber Co. (2007):
Set a time limit of 180 days for bringing civil rights
lawsuits for sex discrimination complaints in federal
court. The ruling was effectively repealed by the
2009 Fair Pay Act.
Davenport v. Washington Education Association
(2007): Allowed states to require unions to obtain
affirmative consent before spending nonmember
public employees’ fees on political activities, rather
than refunding fees retroactively to objecting non-
members on request.
14 Penn Plaza LLC v. Pyett (2009): Upheld a
provision in a collective bargaining agreement
that required union members to arbitrate age-
discrimination claims.
Wal-Mart v. Dukes (2011): Declined to certify a class-
action, pay-discrimination case brought on behalf of
1.5 million female employees, establishing a standard
that makes it more difficult to bring class actions
over wages in federal court.
Burwell v. Hobby Lobby Stores (2014): Declared that
privately held for-profit corporations are “persons”
engaged in the “exercise of religion” and may deny
health insurance coverage for contraception to
female employees.
University of Texas Southwestern Medical Center
v. Nassar (2013): Heightened the burden of proof
plaintiffs must meet in individual race-based
workplace discrimination suits.

Vance v. Ball State University (2013): Redefined the
concept of “supervisor” under the Civil Rights Act to
relieve a corporate employer from liability in hostile
work environment cases.
Knox v. SEIU (2012) and Harris v. Quinn (2014):
Limited fair-share fees in the public sector but
stopped short of declaring them unconstitutional.
Integrity Staffing
Solution
s, Inc. v. Busk (2014): Held
that the time spent by warehouse workers waiting to
check out for the day is not compensable under the
Fair Labor Standards Act.
Epic Systems Corp. v. Lewis (2018): Affirmed
mandatory arbitration agreements providing for
individualized proceedings.
Janus v. American Federation of State, County, and
Municipal Employees, Council 31 (2018): Overturned
an earlier ruling to declare that extracting fees
from nonconsenting public-sector employees
violates the First Amendment.

—Bill Blum
https://www.prwatch.org/news/2015/03/12758/national-right-
work-committee-attacking-wisconsin-hypocritical-zeal
https://www.prwatch.org/news/2015/03/12758/national-right-
work-committee-attacking-wisconsin-hypocritical-zeal
https://en.wikipedia.org/wiki/Labor_Management_Relations_Ac
t_of_1947
http://progressive.org/dispatches/behind-national-right-work-
committee-anti-union-crusade/
https://www.theguardian.com/us-news/2018/feb/24/rightwing-
billionaires-union-rights
https://www.bls.gov/news.release/union2.nr0.htm
https://jamesfeigenbaum.github.io/research/pdf/fhw_rtw_jan201
8.pdf
https://www.opensecrets.org/orgs/totals.php?cycle=2012&id=D
000000061

http://www.scotusblog.com/case-files/cases/epic-systems-corp-
v-lewis/
20 u August / September 2018
expanding the speech rights of public
employees at all,” Alice O’Brien, general
counsel for the National Education As-
sociation, charged in a column posted
by the SCOTUSblog.com website. “It is
about five justices constitutionalizing
their disdain for the right of working
people to come together to speak with
a unified and strong voice.”

Julius Getman, an expert in labor
law who teaches at the University of
Texas at Austin School of Law, ex-
pounds on this theme in an interview
with The Progressive.
“Nothing about the fair-share sys-
tem prevented Mark Janus or any
other public employee from speaking
out on any issue,” notes Getman. “To
say that it did is pure bullshit. There
are so many situations where people
are legally required to pay money to
institutions they may not like as a con-
dition of employment, such as the bar
dues paid by lawyers.”
Getman, the author of The Supreme
Court on Unions: Why Labor Law Is
Failing American Workers, published
in 2016 by Cornell University Press,
says labor unions “have always had
a difficult time in the courts, dealing
with hostile judges and anti-union
doctrines. But this is a particularly

bad time for the simple reason that the
Supreme Court under John Roberts
has no sympathy for working people.
To the extent the current court has a
consistent ideology, it is support for
the market.”
In terms of broad constitutional
theory, Getman believes we’re witness-
ing a return to what scholars call “the
Lochner era”—so named after the 1905
case of Lochner v. New York.
Like Janus, Lochner was decided by
a 5-4 vote. In it, the Supreme Court
overturned New York’s Bakeshop Act
of 1895, which was designed to pro-
tect bakery employees by limiting their
maximum working hours to ten per
day and sixty per week. The court said
the law violated the due process clause
by interfering with workers’ liberty to
contract.

In subsequent decades, guided by
similar free market principles, the
court also upheld “yellow dog” labor
contracts allowing employers to refuse
to hire union members; overturned the
federal child labor act; nixed legislation
setting minimum wages for women
and children in Washington, D.C.;
and invalidated a law requiring that
rail workers receive pensions.
Getman says the Roberts Court’s
“return to Lochner was even more evi-
dent” in its May ruling in Epic Systems
Corp. v. Lewis. That case involved a
Wisconsin-based health care software
company that had notified its employ-
ees that they needed to resolve any
wage and hour claims through individ-
ual arbitration rather than collective or
class actions.
Jacob Lewis, then a technical writer
with Epic, filed a federal complaint in
2015 on behalf of himself and other

writers whom, he alleged, were un-
lawfully denied overtime pay under
the Fair Labor Standards Act. Lewis
argued that the company’s arbitration
policy violated the part of the National
Labor Relations Act that safeguards
the right of employees to engage in
concerted activities for mutual aid
and protection.
Lewis won at both the trial level and
in the Seventh Circuit Court of Appeals.
But his triumph proved short-lived.
In January 2017, the Supreme Court
agreed to hear Epic’s appeal, consoli-
dating it with two other wage-and-hour
disputes. The court’s decision in Epic,
once again cleaved 5-4 along ideolog-
ical lines, upheld the arbitration pro-
visions and class-action waivers in all
three cases. The majority opinion was
written by Gorsuch. While the ruling’s
scope is unclear, some observers be-
lieve it will also apply to discrimination
and sexual harassment claims.

Getman believes the Epic decision
will hurt even more people than Janus
because it applies to all workers, union
and nonunion, as well as consumers,
who are routinely subject to fine-print
arbitration clauses governing every-
thing from cell-phone services to bank-
ing transactions.
So is the Roberts Court worse for labor and workers than its
Gilded
Age predecessors? “I think it’s more
a matter of continuity,” Getman says.
“If you go back to the early days of the
labor movement, you see many [an-
ti-labor] ideas that are being replicat-
ed today.”
What can labor do to fight back?
Getman says it’s vital for the Democrat-
ic Party to restore its ties to organized
labor: “The Democrats have to realize

just how much of their support and
their base comes from unions. What we
saw and heard during the [2016] pres-
idential campaign was just platitudes.”
Bruno, meanwhile, says unions can
press for statutory changes to relieve
them from their costly duties of repre-
senting nonunion workers in grievanc-
es with management. New York State
passed such legislation in March. More
important, Bruno says, unions can re-
turn to “good old-fashioned bargaining
for the common good,” reaching out
to broader communities to help build
and sustain healthy families and better
neighborhoods.
Bruno sees that happening in places
like Chicago, where the local teachers’
union has demanded that inner-city
schools be kept open and classroom
sizes reduced. He’s also encouraged by
the teacher strikes this spring in red
states like West Virginia, Arizona, and

Oklahoma.
There is no question that the Rob-
erts Court has made the task of union
organizing more difficult. And going
forward, if Trump’s latest Supreme
Court nominee—Brett Kavanaugh of
the D.C. Circuit Court of Appeals—is
confirmed, there is little doubt the dif-
http://www.scotusblog.com/2018/06/symposium-janus-radical-
rewrite-of-the-first-amendment/
https://law.utexas.edu/faculty/julius-g-getman/
http://www.cornellpress.cornell.edu/book/?GCOI=80140100514
990
990
990
https://en.wikipedia.org/wiki/Lochner_era
https://en.wikipedia.org/wiki/Lochner_v._New_York
https://en.wikipedia.org/wiki/Coppage_v._Kansas

https://en.wikipedia.org/wiki/Hammer_v._Dagenhart
https://en.wikipedia.org/wiki/Adkins_v._Children%27s_Hospita
l
https://supreme.justia.com/cases/federal/us/295/330/case.html
https://www.wisbar.org/NewsPublications/Pages/General-
Article.aspx?ArticleID=25349
https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf
https://www.huffingtonpost.com/entry/supreme-court-helping-
companies-sexual-harassment_us_5b02f3c1e4b0463cdba4c638
https://www.huffingtonpost.com/entry/supreme-court-helping-
companies-sexual-harassment_us_5b02f3c1e4b0463cdba4c638
http://progressive.org/magazine/companies-bar-workers-
consumers-courts/
https://www.jdsupra.com/legalnews/from-fair-share-to-simply-
unfair-for-38753/
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