Labor Law Faces Dire New Threats From Supreme Court Under Trump

Amid the fallout of Donald Trump’s electoral victory, anti-union groups are scheming about renewed possibilities for a brutal rollback of federal labor law in the coming years.

US organized labor was able to breathe a sigh of relief this past February when Justice Antonin Scalia’s death also brought with it the death of the Supreme Court case Friedrichs v. California Teachers Association, which would have essentially imposed nationwide “right-to-work” laws across the public sector, overturning longstanding federal law allowing public sector unions to charge fees to nonmembers for their collective bargaining services. Hoping to deal organized labor a thundering financial and existential hit, anti-union activists — and the conservative, business-funded groups representing them — are now ready to bring a similar legal challenge to the forefront.

Last week, two Illinois state employees, Mark Janus and Brian Trygg, filed their first brief in Janus v. AFSCME, a case that, like Friedrichs, is challenging the constitutionality of fees paid by nonmembers of public sector unions. The fees — often described as “fair-share” or “agency” fees — are used to fund collective bargaining services provided by unions in their negotiations for an entire workforce. The two plaintiffs, represented by lawyers with the National Right to Work Legal Defense Foundation (NRTW) and the Liberty Justice Center, are asserting that the federally mandated fair-share fee violates “their First Amendment rights by forcing them to subsidize their unions’ bargaining-related activities, notwithstanding their deeply [held] opposition to the positions their unions advance in collective bargaining.”

NRTW President Mark Mix explained the first amendment reasoning further on the day of the brief filing, saying:

“[The public sector unions] are trying to advocate for certain government actions, and they’re trying to convince governments to do certain things with their resources, i.e. taxpayers’ resources, and so in that sense, it’s political speech. And if it’s political speech, it’s going to be protected by the First Amendment. And if it’s protected by the First Amendment, then a worker can’t be compelled to pay anything to have someone, quote/unquote speak on their behalf.”

Although, Janus is one of at least two dozen fair-share fee related cases currently pending, all pushed by anti-union forces, such as NRTW, Seattle University School of Law Professor Charlotte Garden told Truthout, “Based on where the Janus case is now, that certainly could be the one that goes up first.”

Just a few months ago, union activists believed the seemingly probable victory of Hillary Clinton, and the subsequent ability to tilt the Supreme Court in a progressive direction, would protect organized labor from further Friedrichs-like legal assaults. But now, NRTW believes that Janus could reach the Supreme Court just a few months after President Trump gets his Justice Scalia replacement appointed, a speediness reflective of the fact that NRTW has argued, like past anti-union groups did with Friedrichs, that lower courts do not have the authority to overturn the fair-share fee Supreme Court precedent of Abood v. Detroit Board of Education in 1977. Mix described a successful outcome, an overturn of Abood, as “a nationwide right-to-work for all government workers.” Law experts who spoke with Truthout agreed that an overturn of Abood would be likely to effectively result in this significant change in labor policy. And if Trump’s short list of potential Supreme Court justices is any indication, Garden told Truthout, “It’s likely that whoever he ultimately chooses will be at least a very likely vote to overrule Abood and agency fees in the public sector.”

While right-to-work is currently the law in 26 states, its expansion into other states like traditionally union-friendly California or New York (which would have been unlikely to adopt such policies on their own) could result in a substantial reduction in national union budgets, causing an almost immediate financial crisis for public sector unions everywhere. Union advocates have termed the consequences of right-to-work a “free-riding” problem because workers who opt out of the union and do not pay fair-share fees still receive the same collectively bargained-for wages and benefits that their dues-paying, union-member coworkers do, without paying for the service the union provides in return. In 2015, public sector union density was 35 percent, or more than five times the density of that in the private sector. A deflated and defunded public sector unionism could mean a dire situation for organized labor as a whole.

On the other hand, as journalist Ari Paul argued last year in Jacobin, examples of successful union strategies under such conditions do exist and should provide lessons for activists dismayed by the threat of nationwide public sector right-to-work.

Paul specifically mentions the Transport Workers Union local in New York, which lost its automatic dues collection for 18 months in 2005 but thereafter saw the birth of a grassroots movement of intense internal organizing led by reform-minded members. He also points to the 90 percent union density figure of the Culinary Workers Union in right-to-work Las Vegas, a reality possible due to similarly strong organizing. Paul concluded that “social movement unionism,” where unions act less like passive insurance companies and are instead reimagined as vehicles for change in the day-to-day lives of their members, would be key in combating nationwide right-to-work, saying:

“[The] spread of right-to-work also might impel some unions to get their act together. Unions with a tenuous relationship to their rank-and-file could be forced to establish firmer ties. Less money coming in could prompt unions who devote too much to officials’ pay to trim spending at the top. And above all, labor would have to rethink some of its most basic assumptions about the structure of unions and how to relate to members.”

Moreover, the success of Janus could have far-reaching implications, beyond expanding right-to-work to government workers nationwide. In February, the NRTW lost a case, D’Agostino v. Baker in the First Circuit, which had challenged the constitutionality of exclusive representation in unionized shops. If the NRTW had won that case, unions would no longer be negotiating for all employees, as federal law currently dictates — instead, they would negotiate only for their members. This would potentially have led to varying levels of working conditions and benefits in a single place of employment, and further fragmentation of union power in the workplace.

In writing the ruling opinion, former Supreme Court Justice David Souter largely based his decision to strike down D’Agostino on the precedent of Abood. If NRTW gets what it wants with Janus, then it is conceivable that a case like D’Agostino could appear before the Supreme Court thereafter without Abood standing in its way. Shaun Richman of In These Times has argued that the end of exclusive representation could open the door for multiple competing members-only unions within single workplaces, a promising way to shake up labor relations for the good, saying, “Exclusive representation allows employers to only deal with one set of organizing tactics and one set of narrow demands.” Essentially, unions would have to prove their mettle with the services they promise and their ability to successfully provide them.

Although a right-to-work victory on Janus, and the later death of exclusive representation requirements in a D’Agostino-like case, might not be fatal, it is undeniable that after such a decision the labor landscape going forward would be unrecognizable. At the same time, as Catherine Fisk, a labor law professor at the University of California, Irvine, told Truthout, unions won’t be the only ones affected by the outcome of these potential decisions. The legitimacy of the courts themselves is also at stake.

“In the long term, it hasn’t turned out well when federal courts decided that the Constitution renders invalid laws enacted by majorities to protect workers, poor people, old people and disabled people,” Fisk said, pointing to the public, executive and congressional backlash to the Supreme Court’s rulings that found many of President Franklin Roosevelt’s New Deal programs unconstitutional.

“I think this strategy of conservative judicial activism presents serious risks for the legitimacy of the Supreme Court,” Fisk added. “In the long term, if the court is perceived as a tool of the business elite, it no longer will enjoy the respect that it’s had for the last 70 years as being primarily about being protecting the rights of minorities, about preventing discrimination, about protecting the right to political speech, and could be perceived as simply a tool that the elites use to gain a larger share of the wealth produced by the middle class and the working class.”