Workers in the United States are under constant attack. They are under attack at their jobs by bosses and employers who want to restrict their rights, limit overtime and safety, take away their health care and weaken their ability to join a Union.
These attacks are no longer just coming from the employers and the bosses. Since the election of Donald Trump these attacks are being increased from within the administration with the backing of the judicial system. These attacks are taking place by the National Labor Relations Board and by the activist judges being appointed by this administration.
In a follow up to the Janus decision that took away Fare Share fees from Public Sector Unions, overturning 40 years of settled law, we are seeing a new attack by these anti-union organizations. In March of this year, Mark Janus’ attorneys asked the Supreme Court to require his Union, AFSCME Council 31, to pay back all of his Fair Share fees from his time as a public employee at the State of Illinois. They believe that if a non-Union public employee doesn’t currently have to pay the fee that they should never have had to pay it.
Make no mistake this ruling has absolutely nothing to do with helping workers or giving public sector workers any kind of freedom. The purpose of this attack, funded by the billionaire 1% and corporations running this country, is to bankrupt and weaken Unions so they cannot support and fight for workers rights.
The case, Janus v. AFSCME Council 31, was litigated for Janus by Liberty Justice Center and the National Right to Work Legal Defense Foundation. These two groups, while not for profits, will do free legal work for any entity or defendant challenging a Union.
The purpose of groups like the Liberty Justice Center and the National Right to Work Legal Defense Foundation taking up these cases isn’t to help workers obtain freedom from Unions. The purpose is to dismantle and chip away at the strength of Unions in this country. These organizations that claim to be not-for-profit are using millions of dollars in donations to advance the causes of their donors, all while keeping the exact amounts they raise from these individual groups a secret.
The donors who fund the lawsuits against Unions are the same groups that advocate against healthcare for workers, who push for weaker safety standards, who work against raising the minimum wage and paying a prevailing wage. These same donors celebrated the passage of Citizens United, which allowed businesses to be treated like individuals in spending on political advocacy all without disclosing where the money is coming from.
“While labor Unions are forced to publicly disclose nearly every financial transaction they make, those plotting our demise hide behind front groups to plow dark money into bad-faith lawsuits that tie up Union resources and hurt working people,” said Randi Weingarten, President of the American Federation of Teachers.
Since the formation of the Business Roundtable in the early 1970s, Unions have been under constant attack. This group spent time and money organizing and electing officials that agreed with them on workers’ rights. They helped elect mayors, city councils, state legislative members, and even Governors. A slow methodical attack on workers, worker wages, worker rights, healthcare, and safety. These attacks not only hurt workers in those states but impacted people’s opinions of Unions.
Trump and his administration have only been too happy to help these groups achieve their goals. The National Labor Relations Board is working night and day to overturn rules that have governed workers rights for the last 40 years. OSHA, after four months, has not come out with guidelines for workplace safety in the COVID-19 era. The administration is even pushing to give businesses immunity from legal action for employees who are infected by the disease because of the businesses negligence to keep them safe.
In 2014, Bruce Rauner, a hedge fund billionaire, spent tens of millions of dollars to become Governor of Illinois. Rauner’s main focus as governor was to take on and dismantle public sector Unions, and he went to court to make that a reality. While the case began as Rauner v. AFSCME, Rauner found an opportunistic lackey in Mark Janus as the face of this attack on workers: Janus v. AFSCME Council 31 would be the face of the attack on workers
The premise of the Janus case was that workers, who work and receive wages negotiated by a Union and agreed to by their employer should not be forced to pay their fair share of the fees to a Union that is negotiating on their behalf if they have not joined that union. In 1977 the U.S. Supreme Court ruled, in Abood v. the Detroit Board of Education, that workers covered under a union contract were required to pay for the maintenance of that contract and what the Union did on their behalf, even if they were not members. They were allowed to opt out of Union membership but were required to pay their “fair share” of the cost of the agreement.
Bruce Rauner used his position as governor to expand the attacks on workers in Illinois. He stopped negotiating with state workers who were represented by Unions (or stopped negotiating with Unions who state workers had chosen to represent them), stopped allowing the yearly updating of prevailing wage rates, tried to have municipalities create “Right-to-Work” zones, and he stopped processing workers complaints to the Department of Labor. Complaints that included wage theft and violations of Prevailing Wage and Union contracts.
“It’s a mistake to look at the Janus case and earlier legislation as isolated episodes,” said Alexander Hertel-Fernandez a Columbia University political scientist to the New York Times in February, 2018. “It’s part of a multipronged, multitiered strategy.”
This was a playbook that had been used repeatedly to much success by pro-business elected officials.
- Wisconsin, these kinds of actions were championed by former Governor Scott Walker who eliminated the collective bargaining rights of public sector workers and then made the whole state to “Right-to-Work”
- Michigan by former Governor Rick Snyder who passed Right-to-Work and eliminated Prevailing Wage
- Missouri by disgraced former Governor Eric Greitens who advocated for and signed “Right-to-Work”
- Kentucky by former Governor Matt Bevin who called a special session to sign “Right-to-Work” and eliminate Prevailing Wages
- Indiana by now Vice President Mike Pence who signed “Right to-Work” and made changes to the Prevailing Wage Law
In this playbook, the play is some sort of twisted flea flicker where the politicians purport to protect workers by withholding resources from the Unions who represent them.
These attacks on workers have worked in state after state. Because of these laws, an average worker in a “Right-to-Work” state makes $8,740 less per year in income and benefits, children are 24% less likely to have healthcare in those states, and per pupil education funding levels are $2,670 dollars less in “Right-to-Work” states. Workers in the construction industry are hit even harder in “Right-to-Work” states, they make an average of 43% less per hour in benefits and wages.
Rauner and Janus were just another facet of the concerted effort by the U.S. oligarchs to attack workers. The attacks began to slowly build steam in 1947 with the passage of the Taft-Hartley Act which attempted to wrestle back some of the power Unions had received from the Wagner Act of 1935.
Janus was not the first case to actually be taken up by the Supreme Court that dealt with fair share fees. As recently as 2016, the Supreme Court took up the case of Friedrichs v. the California Teachers Association, which challenged the notion of fair share fees paid by workers. In that case the Court deadlocked at 4-4 shortly after the unexpected death of Justice Antonin Scalia, who it is believed would have ruled against fair share.
Scalia’s death opened up a divided battle between the Republican U.S. Senate and President Obama. The heart of the conflict was the question of if a President, who has the lone ability to nominate Supreme Court Justices, deserves to have their nominee considered in a timely manner by the U.S. Senate or can they unilaterally decide to wait out a President’s term.
President Obama nominated Merrick Garland and Senate Majority Leader Mitch McConnell decided that the Senate would not hold hearings or a vote on the nomination while Obama was still in Office. Justice Scalia’s seat sat vacant from his death, February 13, 2016 until President Trump’s nominee, Justice Neil Gorsuch, was confirmed on April 7, 2017.
With the confirmation of Gorsuch, the Janus case was free to be fast tracked back to the Supreme Court to face a bench that was as equally anti-worker as when Scalia was alive. The Janus attorneys refiled the case saying that Mark Janus’ First Amendment rights were being violated by being forced to pay fair share fees to a Union that he opposed on political and philosophical grounds.
In February, 2018, the independent Economic Policy Institute released a report entitled “Janus and Fair Share Fees: The organizations financing the attack on Unions’ ability to represent workers.” It states:
“Litigating a case all the way to the United States Supreme Court is expensive; years of attorneys’ fees, court costs, and trial expenses add up. How is it that a few public-sector employees who seek to challenge Union representation are able to shoulder these costs? The plaintiffs in Harris, Friedrichs, and Janus have all been represented by wealthy legal foundations, providing pro bono representation in each of these cases.”
The organizations that rush to defend workers claiming to be wronged by their Unions are doing this work with ulterior motives. They are working in the best interests of the donors that fund them and not in the interest of their clients. Sometimes those motives are the same in the short term but rarely do the defendants have all the evidence to see the larger picture.
In the Janus case, the Liberty Justice Center was working for both their client and their donors. The Liberty Justice Center is the legal arm of the Illinois Policy Institute, a conservative think tank that has received millions in funding from Bruce Rauner and other fat cat big business anti-Union donors.
On June 27, 2018 the U.S. Supreme Court overturned 41 years of legal precedent and voted 5-4 in favor of Mark Janus ending the collection of fair share fees by public sector Unions. Activist judges on the Supreme Court and Federal Courts are inflicting anti-worker rulings overturning decades of established law designed to fill the pockets of the wealthy while weakening the power of the worker.
Three and a half years after Bruce Rauner had begun his term as Governor of Illinois, he had succeeded in striking a blow against the public sector Unions that he had vowed to destroy. In August of 2018, Mark Janus left his position at the State of Illinois and went to work as a “Senior Fellow” working for the Illinois Policy Institute. In November, 2018, Bruce Rauner was defeated by JB Pritzker, who put together a strong coalition of organized labor, workers’ advocates, and populist progressive ideas and rode it to victory. Illinois has since seen a move back towards normalcy in regards to workers’ rights.
Yet, all is not lost. In 2018, Missouri voters overturned Right to Work by nearly 66% of the statewide vote. In the two years since the original decision on Janus, we have actually seen a shift in the opposite direction for Union membership. While initially in most Unions that represent the public sector, employees saw a dip in membership, many of them are actually seeing an increase in members. Public opinion of labor Unions is at its highest level in over 20 years. Between 2017 and 2019, the Steelworkers and the International Union of Operating Engineers saw a net gain of 15,500 new members, and the Laborers’ International Union of North America saw a net gain of 6,000 new members.
“It was good old-fashioned organizing of our members – education and preparing them for what’s coming,” said Jason Rabinowitz, director of the Teamsters public services division. “The main message was that our rights are under attack from people that want to weaken Unions so the poor can get poorer and the rich can get richer, and that we have the power to maintain our strength just by all of us coming to stand together. And that message really resonated with our members.”