The fate of unions will be decided by the Supreme Court. If they lose, fair wages, guaranteed health care, and general job safety are at risk for millions of workers.
Right now, a case that has the potential to gut public unions, Janus v. American Federation of State, County, and Municipal Employees, Council 3 is set to be heard at the Supreme Court in February 2018. If public unions are functionally destroyed, private unions will be next. And if you care about the health and well-being of women in the workforce, you need to care about unions.
All of this might sound familiar because public unions have been in the crosshairs of conservatives for a long time. For the past 40 years, since the Supreme Court decided Abood v. Detroit Board of Education, the law has been that a public union (unions that cover government workers, such as teachers, police officers, and firefighters) can be what is known as an “agency shop.” That means that everyone pays union dues even if they decide not to belong to the union. Why? Because the union’s ability to collectively bargain—to use their sheer numbers to get better pay and benefits for employees—benefits everyone, regardless of whether they want to belong to a union or not.
Conservatives routinely point out that the bulk of union political advocacy and spending tilts toward Democrats, and they’re not wrong. Of course, that advocacy shouldn’t really surprise anyone, given that Democrats have more worker-friendly policies than the Republicans by far. This advocacy makes conservatives furious, of course, and they argue that they shouldn’t have to pay union dues and be part of this compelled speech in favor of Democrats. But here’s the thing: In the roughly two dozen states where you are required to pay some dues to a public union, workers can opt out of the union and pay only a “fair share” due to cover the cost of collective bargaining. Then, they already aren’t contributing to any political speech from their union. But that hasn’t stopped the lawsuits.
Back in 2014, conservatives thought they had a winner in Harris v. Quinn. That case dealt with home health care aides whose wages were paid by Medicaid. It ended up creating a category called “partial public employees” who could opt out of the union because they didn’t work directly for the government. Justice Samuel Alito—a younger, crueler Justice Scalia—likely tried hard to get the votes to overturn Abood, which would have meant that government employees wouldn’t have to pay any portion of their union dues. Essentially, Alito directly signaled to anti-union forces that they should just bring him another case.
And they did, In 2016, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association. There, a group of 10 California teachers and the Christian Educators Association International took Alito up on his invitation and argued that they shouldn’t have to pay anything. Here’s how their reasoning went: When a public union acts in the public sphere, you can’t separate out their political from non-political activities, because every time the union gets a benefit or a concession from the government, its employer, that benefit costs the taxpayers money.
This is, of course, an incredibly bad faith argument. If you have chosen to work for the government, you’ve obviously chosen to be paid with taxpayer dollars. And you, presumably, would like to be paid the maximum amount you could, which costs the taxpayer more money. It’s a trap you can’t get out of unless you decide to leave government employment. But conservative anti-union employees don’t want to leave government employment, and they don’t want to be paid less. They just want to not pay union dues while still reaping the benefits of all the union’s collective-bargaining abilities, which doesn’t just cover things like wages—it covers the everyday nuts and bolts of employment: what time you have to arrive at work, how long your breaks are, and so on.
Nevertheless, SCOTUS seemed poised to rule 5-4 in favor of the teachers and obliterate public unions … but then Justice Scalia died. That left the court with a 4-4 decision, thanks to being down a member when Mitch McConnell defied convention and reason to block Merrick Garland from being seated. When SCOTUS has a tie, the decision from the court below stands, and the 9th Circuit, when they had heard Friedrichs, ruled in favor of the teachers’ union. So, public unions lived to see another day.
And then Donald Trump was elected president.
The Janus case was already in the pipeline, pushed by the exact same anti-union entities—the National Right to Work Legal Defense Fund, Pacific Legal, and more—that had been behind Friedrichs. Once again, the plaintiffs lost below and petitioned the Supreme Court to take the case, and once again, the Supreme Court did—now with anti-union and anti-worker Justice Neil Gorsuch in the seat that was Barack Obama’s to fill.
Functionally, the Janus case isn’t really all that different than the cases that have gone before, save for the fact that this time a Republican governor, Bruce Rauner of Illinois, also wants to bust unions and was originally a party to the lawsuit. It’s just another attempt to get the Supreme Court to overrule its own decision in Abood. The decision they want is a declaration that paying public union dues is a violation of the First Amendment because paying those dues equals supporting speech—lobbying the government on behalf of workers—that anti-union people oppose, and you can’t be compelled to fund speech you oppose.
And they’re probably going to win at the Supreme Court.
Under Obama, the government had originally sided with the unions. The Trump administration reversed course and filed a brief earlier this month siding with Janus. Their brief argues that all collective bargaining in the public sector is about public issues and is therefore a matter of public policy and “the proper structure and operation of government.” Underlying this argument is the thread of all anti-union and anti-government people, of which Trump is basically an avatar: the government is too big, unions hurt workers, and you should essentially blow them both up.
It isn’t an exaggeration to say that public unions will be functionally dismantled if the Supreme Court finds in favor of Janus. People will opt out of paying union dues and become “free riders”—why pay union dues to get better pay and benefits when the union is required to negotiate on behalf of you anyway? It isn’t just about losing money either. Losing members means less bargaining clout, which ensures that, particularly in GOP-controlled states, public-sector workers will see losses in pay, benefits, and working conditions.
The Janus case only deals with public unions, but conservatives have their eyes on private unions, too. States like Wisconsin already have “right-to-work” laws, which prohibits mandatory union membership and allows non-members to pay no dues, even though the unions are mandated by federal law to represent all members, even the non-payers.
Weakening or eliminating union protections can hit women especially hard. Women are on track—well, at least until unions go away entirely—to be the majority of union members by 2025.
Women benefit greatly from union membership. They see roughly 30 percent higher pay than women in non-union jobs, where men see roughly 20 percent higher pay. There’s also less of a pay gap. Women in unions earn 88.7 cents for every dollar a man earns, well above the roughly 80 cents on the dollar that is the overall gender pay gap.
Women who are either covered by a union contract or members of a union are more likely to have a pension and get health insurance benefits through their employer. Keep in mind that the recently passed tax bill basically blows up the individual insurance market, which means you need to have a job that pays you health insurance. Three in four unionized women get health benefits, but only half of non-unionized women do.
Right-to-work laws, which depress wages across the board, hit women harder than men as well. Those laws mean lower wages whether you remain in a union or not, but for women the loss is about 4.4 percent, where men see only a 1.7 percent difference.
The undermining or demise of public sector unions in particular would also hit people of color hard. Where one in six white workers are public sector employees, one in five African-American people are. The public sector is the largest employer for Black men, period, and the second largest for black women.
We live in an era where the Trump administration is attacking workers on all fronts. The Labor Department is delaying rules that would keep workers safe from carcinogen exposure. Obama’s overtime rule is being rewritten to cover far fewer workers. Mine owners won’t be required to tell miners about potential hazards before sending them to work somewhere.
When the government is no friend to workers, unions have to be, and that protection is dangling by a thread right now.
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