Tag Archives: Janus

A Small Chicago Firm Has Quietly Funded Nearly Two Dozen Anti-Union Lawsuits

Originally published in The Intercept on December 23, 2019.
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A lawyer who filed 21 class-action lawsuits against unions over the last two years has previously said that his lawsuits were not part of any concerted effort to target public-sector unions and that “the idea to bring these lawsuits was entirely my own.” It turns out, however, that his lawsuits are backed by a small finance litigation firm in Chicago, according to a court filing that has not been previously reported. The firm, Juris Capital, is in the business of bankrolling litigation upfront, making bets that it will enjoy an ample cut of a plaintiff’s proceeds.

Attorney Jonathan Mitchell filed his lawsuits in New York, New Jersey, Pennsylvania, Minnesota, Maryland, California, and Washington state in the weeks and months before the Supreme Court issued its decision in Janus v. AFCSME, a case that significantly weakened public-sector unions.

In its landmark Janus ruling, the Supreme Court said in June 2018 that public-sector unions cannot collect fees from workers who do not wish to be union members. The court deemed unconstitutional a longstanding practice of unions charging so-called agency fees to workers who did not opt to join a union but benefited from its bargaining nonetheless.

Mitchell’s litigation seeks hundreds of millions of dollars in retroactive payments from public-sector unions, refunds on behalf of workers ideologically opposed to ever having paid any union agency fees. Most states have two- to three-year statutes of limitations on these kinds of suits, while Minnesota’s goes back six years. In the immediate aftermath of the Janus decision, conservative legal foundations — including the Pacific Legal Foundation, the Buckeye Institute, and the National Right to Work Legal Defense Foundation — also filed similar lawsuits.

At the time of his initial court filings, Mitchell also had a pending nomination by President Donald Trump to serve as chair of the Administrative Conference of the United States, a federal agency dedicated to improving government administration. Tapping Mitchell, a former visiting professor at Stanford Law School and before that the Texas solicitor general, to lead the nonpartisan agency rankled some, as he had a long conservative legal record. (Mitchell’s nomination, which was not approved by the full Senate, was returned to the White House at the end of the last Congress, and he was not renominated this year.)

Mitchell’s law firm that brought the anti-union lawsuits, Mitchell Law PLLC, was registered in June 2018 — the same month as the Janus ruling. A month later, Noam Scheiber of the New York Times looked at Mitchell’s involvement in the lawsuits, writing that it suggested “a well-coordinated effort.” Mitchell declined Scheiber’s request to discuss the matter, citing his pending nomination “and my desire not to draw attention to the lawsuits.” Nobody knew who funded the work of Mitchell Law.

Not for lack of trying. Also in July 2018, Sen. Sheldon Whitehouse, D-R.I., who sits on the Senate Judiciary Committee, sent a letter to Mitchell, expressing his concern that the lawyer might be part of the same “coordinated, covert, and well-funded” effort to crush public-sector unions that led to the Janus ruling. Whitehouse requested, among other things, a list of all “persons or entities that have provided funding for or have a financial interest, including contingency interests” in the outcome of his post-Janus lawsuits, as well as details on how he identified plaintiffs for his suits.

In his response letter, Mitchell wrote that he “can assure you that I am not part of any ‘campaign’ or coordinated effort to litigate against public employee unions.” He claimed that the idea to “bring these lawsuits was entirely my own, and it was not made in conjunction or coordination with the Janus litigants or any of the entities that you mention in your letter.” He declined to share who was funding the litigation, citing attorney-client and “attorney-work product” privilege, but insisted that there was nothing covert about his efforts.

Thirteen months later, Mitchell had to file a rare disclosure form, providing information about his lawsuits that he’d never before had to share publicly. This was thanks to a rule in the U.S. District Court for the Northern District of California that requires mandatory disclosure of third-party funding agreements for class-action lawsuits.

In a filing dated August 13, 2019, Mitchell disclosed that “Juris Capital LLC has provided a non-recourse loan” to his law firm and that the “loan is to be repaid with the proceeds that Michell Law PLLC receives from any of the approximately 20 class-action lawsuits that the firm has brought against public-sector unions in the wake of Janus, including this case.” In sum, he concluded, “Juris Capital LLC therefore has a ‘financial interest in the subject matter in controversy.’”

Reached by phone, Mitchell declined to comment.

JURIS CAPITAL IS a decade-old privately held litigation finance firm incorporated in Chicago. Headed by David Desser, a self-described “pioneer in the commercial litigation finance industry,” Juris is one of just a few litigation finance firms in the U.S that provide upfront funding for pending litigation and take a cut of the plaintiff’s settlement or jury award. Desser once told the New York Times that overall, “our returns are well in excess of 20 percent per year” and that “we’re certainly beating the market.” While Juris is not required to identify its funders, media reports have previously described it as “backed by two hedge funds” and “a group of dedicated investors.”

Randi Weingarten, president of the American Federation of Teachers, blasted Juris for hiding its donors.

“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,” she told The Intercept. “It’s well past time that Juris is exposed for what it is: a dark-money vehicle trying to deny workers a voice at work and in our democracy.”

The AFT lost 84,500 agency-fee payers immediately after the Janus ruling, though it added another 88,000 members between November 2017 and November 2018. Many conservative groups have been running campaigns since June 2018 encouraging public-sector union members to disaffiliate altogether.

In many ways, the cases being filed against public-sector unions appear quite unusual compared to the kinds of cases Juris and other finance litigation firms typically invest in. Generally finance litigation firms look for low-profile cases, in which the chances of winning or settling are high, so as to prioritize quick, reliable returns.

In 2010, Desser described his firm’s approach like this: “We are cherry-picking the absolute best cases with a fact pattern that we can deconstruct. We’re not interested in winning 1 out of 10 like in the venture capital world, where you look for that home run. … We want to win 7 out of 10, with doubles or triples on our money.” Desser did not return The Intercept’s requests for comment.

So far, the wave of post-Janus lawsuits, both those led by Mitchell and those led by conservative legal foundations, have not yet proved successful, as trial courts across the country have unanimously accepted unions’ arguments in roughly 25 cases that they were acting in good faith prior to Janus and therefore, should not be held responsible for funding the agency fees charged prior to last year’s Supreme Court decision. In some cases though, unions have settled rather than take all the legal challenges through court. A spokesperson for the National Right to Work Foundation told Bloomberg Law in late November that the organization has settled 10 cases and recovered tens of thousands of dollars in agency fees.

While unions have so far had success in the lower courts, the post-Janus litigation is now moving onto the appellate level, where their fortunes could change. In November, the U.S. Court of Appeals for the 7th Circuit became the first federal appeals court to endorse this “good-faith” argument in favor of unions, but six more appellate courts are set to decide on the issue soon. As Robert Iafolla noted recently in Bloomberg Law, “A single circuit ruling that rejects [this argument] would create a split that may pave the way for the issue to reach the Supreme Court.”

“I think in most cases, a finance litigation firm’s hope would be to not go to the Supreme Court, as that means it would be a case that is getting dragged on for years and years,” said Charles Agee, founder and CEO of Westfleet Advisors, a finance litigation consulting firm. “I think most litigation funders hope their cases settle before going to trial.”

Another possibility — though this, too, would be unusual — is that the lawsuits are being waged primarily to drain union coffers in defense. “Juris and others know that if you entangle unions in endless litigation, you can begin to starve our resources,” Weingarten of the AFT said. From this perspective, it’s a win-win for the plaintiffs — either they win and the investors take home profits, or they lose but the unions are still on the hook for hundreds of thousands of dollars in legal defense fees. One example lawyers point to of this sort of strategy is billionaire investor Peter Thiel backing a series of lawsuits against Gawker Media, including a case brought by Hulk Hogan, which ultimately bankrupted the company. Thiel described his investments as “one of my greater philanthropic things that I’ve done.”

Gary Chodes, who has worked in the litigation finance world for the last 15 years, told The Intercept that it would be really difficult to find out who was funding the post-Janus cases, though he has indeed seen some “politically oriented” lawsuits over the years. For example, he said, conservative-leaning think tanks supported Texas ranchers in lawsuits in which local governments used eminent domain to take away cattle ranchers’ water rights.

“Are those cases that will generate a lot of interest from the legal funding industry? No, they’re probably not economical winners,” he said. “But they’re important philosophical battles.”

Will Baude, a libertarian law professor who defended union agency fees as constitutional, told the New York Times that he would expect the Supreme Court to be less sympathetic to “good-faith” defenses than lower courts. “If I were the unions, I’d be really nervous,” he said.

Some of the post-Janus cases are also challenging the legal principle of exclusive representation, in which a union represents all workers in a unit if a majority of the unit endorses it. The majority rule principle is written into the National Labor Relations Act, and Catherine Fisk, an expert on labor law at the University of California, Berkeley told The Intercept that it would be “an extraordinary feat of judicial activism” if the Supreme Court struck that down.

Scott Barton, a spokesperson for Pacific Legal Foundation, told The Intercept that the law firm filed one post-Janus case in California this past summer but “have had no involvement with Jonathan Mitchell or his cases.” Lisa Gates, a spokesperson for the Buckeye Institute, told The Intercept that the think tank is involved in four cases (two in Ohio, one in Minnesota, and one in Maine) and “are not working with Jonathan Mitchell on any cases.” A spokesperson from the National Right to Work Legal Defense Foundation did not return requests for comment, though Mitchell told Whitehouse in 2018 that he was not working with them.

Asked about Juris Capital and whether he believes that Mitchell was sufficiently forthright during his nomination process, Whitehouse told The Intercept, “Jonathan Mitchell has a thriving anti-union law practice that appears to be an arm of the corporate donor campaign that gave us Janus v. AFSCME. The corporate interests behind that anti-worker campaign don’t want the public to see what they’re up to, but nominees for important federal posts need to tell the truth to Congress.”

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Amid Conservative Assault on Organized Labor, Democratic Lawmakers Are Advancing Laws to Expand Workers’ Rights

Originally published in The Intercept on August 5, 2019.
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PUBLIC-SECTOR EMPLOYEES IN states with Democratic majorities have made significant legislative gains in recent months, despite the U.S. Supreme Court’s landmark 2018 decision in Janus v. AFSCME, which found that unions could no longer collect bargaining fees from workers who do not pay membership dues.

More than 22,000 state workers in Nevada and Delaware gained the right to collectively bargain this year thanks to recently passed legislation. Colorado, home to more than 26,000 state employees, is expected to follow suit next year.

With Nevada and Delaware’s new legislation, passed this summer, there are now 26 states that recognize state employee bargaining rights, as do Puerto Rico and the District of Columbia, according to a spokesperson for the American Federation of State, County, and Municipal Employees, or AFSCME. Twenty-four states either outright prohibit collective bargaining or do not authorize meaningful bargaining, such as Wisconsin, which heavily curtailed the ability of public-sector employees to negotiate in 2011.

On the federal level, congressional representatives are also working to bolster the rights of public-sector workers, though any chance of enacting legislation is highly unlikely unless Democrats win the White House and the Senate and maintain their hold on the House of Representatives in 2020. On June 25, Sen. Mazie Hirono, D-Hawaii, and Rep. Matt Cartwright, D-Penn., reintroduced the Public Service Freedom to Negotiate Act, which would, for the first time, set a minimum nationwide standard of collective bargaining rights for the nation’s 17.3 million public employees. Among other things, public employees would be required to recognize their workers’ unions if they’re “freely chosen” by a majority vote, and employers would be required to bargain with workers over wages, hours, and other terms of employment. If public employers refuse, then the legislation grants the federal government the authority to intervene.

The bill is backed by 2020 presidential candidates, including Sens. Elizabeth Warren, Bernie Sanders, Amy Klobuchar, Kamala Harris, Kirsten Gillibrand, and Cory Booker.

This legislative push comes as organized labor was bracing for the worst following the Supreme Court’s Janus decision, which was expected to significantly deplete union coffers. In its 5-4 decision, the court struck down more than four decades of legal precedent and concluded that unions could no longer collect payments from non-dues-paying members in exchange for collective bargaining services. This opened the door not only for nonmembers to stop paying fees, but also for union members themselves to opt out altogether.

While the full extent of Janus’s blow to the labor movement may not be felt for several years, at a labor conference in February, public-sector union leaders said the first year’s impact had been less devastating to membership than expected. AFSCME President Lee Saunders said that while his union had lost 100,000 agency-fee payers since the court’s June decision, they had also managed to flip 310,000 agency-fee payers into dues-paying members. “For every member that we lost, we gained seven,” Saunders declared. Other unions reported relatively minimal losses, like the American Federation of Teachers, which lost 84,500 agency-fee payers after Janus, but also gained 88,000 new members between November 2017 and November 2018.

Still, many experts say the drop-off in membership could happen slowly, rather than an immediately significant decline. Michigan, which became a right-to-work state in 2012, has lost nearly 130,000 union members over the last seven years, or 16 percent of union membership. This year, Michigan unions have reported at least $20 million less in revenue than they did in 2012.

There’s also the risk that unions will have trouble recruiting new members moving forward. Mike Antonucci, a teachers union analyst, said recently that “current members are unlikely to resign in any great numbers. Over time, however, they will retire. The burden will be on the unions to recruit new members in the same percentages as they enjoyed pre-Janus.” The National Education Association saw a 0.5 percent increase in its membership compared to the year before, Antonucci found; however, New York accounted for 80 percent of that nationwide growth. By contrast, 10 state affiliates saw membership drops of 3 percent or more, including North Carolina, which saw a 6.8 percent drop in 2018.

IN THE FACE of the conservative assault on organized labor, workers and lawmakers in blue states are experimenting with new laws and forms of organizing to make it easier to unionize and negotiate on the job.

In Nevada, Democratic Gov. Steve Sisolak, signed a bill in June granting Nevada’s more than 20,000 state workers the right to collectively bargain, a right they’ve been denied since 1965. Sisolak, who was elected in 2018, pledged in his first State of the State address in February to get this legislation passed. His election placed the state government fully in Democratic control for the first time since 1992.

According to AFSCME, the legislation marks the largest expansion of collective bargaining for state workers anywhere in the country in the past 16 years. It benefits a broad swath of workers, including nurses, caretakers, and correction officers.

Conservative opponents of the bill argued that granting collective bargaining rights to state workers would hurt taxpayers and Nevada’s budget, even though there is little empirical evidence in support of that assertion. Local government workers in Nevada have been able to collectively bargain since 1969.

According to researchers at the Economic Policy Institute, a progressive think tank, state employees in Nevada earn between 1 and 13 percent less than their private-sector peers in total compensation, and their health care benefits are less generous compared to state workers in other parts of the country. Workers who advocated in Carson City for the legislation, however, went to great lengths to say that it was not just about wages and benefits, but also things like working conditions and safety. Rick McCann, head of the Nevada Association of Public Safety Officers, said for example that now his members can bargain over things like body-worn cameras and dashcams.

In order to get the bill passed, Nevada workers had to make some concessions. The legislation includes an amendment that grants lawmakers and the governor the final say over things like pay raises, regardless of what the workers negotiate. Compromises like this are common for public-sector unions. Still, labor leaders say that even having a seat at the table will be a huge step forward, and they will push for improvements to the law in the years ahead, if necessary.

Workers saw similar success this year in Delaware, where Democratic Gov. John Carney signed a bill in June granting collective bargaining rights to more than 2,000 state employees.

Since signing the law, state workers in Delaware have already begun to organize new unions. In late July, 340 workers at the Delaware Department of Motor Vehicles voted to form a union for the first time. They are joining Laborers’ International Union of North America Local 1029. Additionally, according to Michael Begatto, executive director of Council 81 AFSCME AFL-CIO in Delaware, dietary workers at the Delaware Veterans Home just voted to join AFSCME, and workers at the Office of the State Fire Marshal recently filed for an election.

Delaware Democrats have had a governing trifecta since 2009, but in the past, state workers faced “a reluctance” by some lawmakers and individuals in the executive office, Begatto said, noting that Gov. John Carney’s election in 2016 worked in their favor. “They balked at being able to go to the table as equals with workers,” he said. “This governor was more understanding; without him, this would not have happened.”

Unions in the state saw less of a decline in membership post-Janus than they had been expecting. “We were pleasantly surprised, as we were expecting a 20 to 25 percent reduction,” Begatto said. “Out of 7,000 members, we had only about 180 members opt-out.”

COLORADO WILL LIKELY be the next state to expand bargaining rights to state employees.

In this year’s legislative session, lawmakers in Colorado came close to achieving collective bargaining rights for its roughly 26,500 state employees, but the bill came to a halt because Democratic Gov. Jared Polis, who was elected last year, said he wanted more time to figure out how it would work in practice. In 2007, Colorado’s then-Democratic governor issued an executive order giving state workers the right to form a union, but not to collectively bargain. This bill would have codified and expanded that order.

Hilary Glasgow, executive director of Colorado Workers for Innovative and New Solutions, the state employee union, told The Intercept that she’s confident the bill will be passed in the next session.

“We know Governor Polis believes in collective bargaining, so where we’re at is him needing to understand all the ins and outs of what this means and how it can benefit not only the state and state employees, but also the citizens we serve in Colorado,” she said. “We’re going to be meeting regularly, as much as it takes, as often as it takes, to get to a place where we can introduce a bill on the first day of the next session that the governor and the union are behind.”

Glasgow and Polis released a joint statement at the end of April pledging to “enter into discussions to address outstanding issues surrounding House Bill 1273 and other issues affecting the state workforce and the people of Colorado that cannot be resolved in the few remaining days that exist in the legislative session.” The statement adds that “we are confident that we will successfully resolve these outstanding issues before the 2020 legislative session.”

Polis’s office declined to comment beyond the April statement.

Glasgow said collective bargaining rights are an important factor in addressing the state’s staffing crisis, which has escalated since 2009. A report published by the Economic Analysis and Research Network, a Colorado WINS partner, finds over the last decade that turnover among state employees increased by 73 percent. Colorado’s Department of Personnel reported last June that roughly one in every five positions in the state government was vacant. The high number of vacancies can place additional strain and responsibility on the workers who remain. A number of research studies support the idea that collective bargaining can help to reduce employee turnover.

“We’re seeing a steady decline in state workers and an alarming increase in vacancies,” Glasgow said. “We’re running roughly 10 percent behind the private sector on their total compensation plan, and what I think people don’t understand about state services is that a lot of them are highly dangerous behind-the-scenes work. There is expertise at the front-line level that can inform how they do their work in a way that makes it safer and better.”

The push for collective bargaining, Glasgow said, is rooted in a desire to make sure that this firsthand knowledge is taken seriously. “Workers need to have a venue to have those conversations so changes in their workplace can actually be implemented,” she said. “Right now, you’re at the benevolence of the governor and the cabinet as to whether they’ll hear you out.”

GOP-Led Efforts to Crush Unions Have a New Target: Home Health Care Workers

Originally published in The Intercept on May 16, 2019.
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Five states are pushing back against the latest Republican-led assault to weaken unions across the country, which targets in-home caregivers who work with Medicaid beneficiaries.

On Monday, attorneys general representing California, Connecticut, Oregon, Massachusetts, and Washington filed a lawsuit against the Trump administration challenging a new rule, announced earlier this month, that impedes home care workers from paying union dues through their Medicaid-funded paychecks. The rule, which goes into effect in July, will impact more than half a million workers in California alone, and several hundred thousand more in 10 other states.

The case was brought against the Department of Health and Human Services and its secretary, Alex Azar, and filed in San Francisco federal court. The plaintiffs argue that the defendants have illegally reinterpreted federal law “in service of anti-union objectives.” The new rule, they say, disrupts long-settled arrangements that allow seniors and individuals with disabilities — who work with state governments to set wages, benefits, and terms of service for their providers — to direct their own health care. More than 700,000 individuals across the five plaintiff states currently use consumer-directed Medicaid programs.

The lawsuit against the Trump administration rule, which was finalized by the Centers for Medicare and Medicaid Services, or CMS, comes the same week as two major developments for home care workers in the United States. In Washington state, Democratic Gov. Jay Inslee signed into law the nation’s first publicly funded long-term care benefit, a hard-fought victory by advocates including SEIU 775, which represents 45,000 home care workers in Washington and Montana. National advocates say they will use Washington’s policy as a model to push for in other states.

Also this week, the U.S. Supreme Court denied a petition to review a case led by a group of Minnesota home care workers who argued that a state law that made Service Employees International Union, or SEIU, their bargaining agent violated their First Amendment rights. The plaintiffs pointed to Janus v. American Federation of State, County, and Municipal Employees; the 2018 case struck down public sector unions charging fees to non-dues paying workers. The same conservative legal groups that supported Janus also helped the Minnesota home care providers, though this time their efforts failed.

While the high court’s ruling marks a setback to conservatives seeking to leverage free speech laws against union power, there are still dozensof other Janus-inspired lawsuits winding their way through federal courts, with two more lawsuits filedin the last month. This week’s lawsuit against HHS is the opposite of that — a proactive effort to get the courts to defend the rights of unionized workers.

The plaintiffs argue that HHS and Azar have violated the Administrative Procedures Act, the law governing how federal agencies can propose and implement regulation. Their complaint says the new rule “abruptly and without any sound rationale or conversations with affected states” overturns an Obama-era rule that confirmed the practice of taking direct deductions from home care workers’ paychecks. The Trump administration has been repeatedly accused of violating the APA, issuing new rules and mandates, and repealing old ones, often outside the bounds of established protocol.

“With this rule, the Trump administration is not only harming Medicaid skilled home care workers who have joined unions, but the millions of seniors and people with disabilities who depend on these indispensable workers,” said California Attorney General Xavier Becerra in a statement.

SEIU, which represents most home care workers, released a statement calling the rule “racist” — noting that 90 percent of home care workers are women, more than half are women of color, and a quarter are immigrants. “The administration’s attempt to silence home care workers reflects a long history in the United States of double-standard policies that deny working people of color like home care workers and domestic workers basic legal protections and rights, including protections for minimum wage and overtime pay, and the right to organize and form strong unions,” the union said. Without a union, SEIU added, independent home care workers earn a median wage of just $10.49 an hour, with no paid sick time or health care benefits.

The federal Bureau for Labor Statistics projects that demand for home care workers will increase by 41 percent between 2016 and 2026, as the baby-boom generation continues to get older. Union membership gives home care workers an incentive to stay on the job, according to a 2017 survey by the National Employment Law Project of more than 3,000 home care workers, of which one-third were union members. The researchers found that unionized respondents were more likely to expect to be a home care worker a year from now, less likely to be looking for other jobs outside of home care, more likely to receive benefits, and had higher wages on average.

The Trump administration announced last August that it was considering scrapping the Obama-era rule that affirmed home care workers could deduct union dues from their Medicaid-funded paychecks. This practice has been criticized by conservatives who argue that in-home caregivers shouldn’t be able to “skim” government funds away to union coffers and that doing so “damages the integrity” of the Medicaid program.

Mark Mix, the president of the National Right to Work Legal Defense Foundation, which files lawsuits in favor of banning unionized workplaces from requiring dues for bargaining representation, praised the Trump administration’s new rule in a statement, calling it a “long-overdue rule [that] closes the illegal loophole created by the Obama Administration that has provided union officials with legal cover to siphon hundreds of millions of dollars in Medicaid funds into union political and lobbying activities.”

In 2014, thanks to a lawsuit backed by Mix’s group, the U.S Supreme Court ruled in Harris v. Quinn that Illinois home care workers could not be required to pay union agency fees. Mix said the Trump administration’s new rule represents “another important step forward in protecting the rights of home care worker from rapacious union officials” and pointed to the 2014 Supreme Court decision, describing it as a situation where “[National Right to Work] Foundation attorneys freed homecare workers” from making payments.

CMS Administrator Seema Verma has denied their new rule is about making it harder for workers to be in unions; she said it’s simply to ensure that any diversion of Medicaid payments is truly lawful.

Last April, the Senate Committee on Homeland Security and Government Affairs — which is tasked with investigating “the efficiency, economy, and effectiveness” of all government agencies — wrote to Verma requesting that she look into this alleged “dues skimming” and cited rising Medicaid costs. The letter, authored by committee chairman Sen. Ron Johnson, R-Wisc., said allowing unions to take dues from home health care providers saps $200 million annually from Medicaid recipient care. Johnson asked CMS to review the practice “and determine whether changes to law or regulation are necessary to ensure Medicaid funds are provided to the program’s intended beneficiaries.”

“The effect of this final rule is the elimination of one method of getting payment from A to B,” the final rule states. “It in no way prevents healthcare workers from purchasing health insurance, enrolling in trainings, or paying dues to a union or other association.”

Critics say the Trump administration’s rationale makes no sense, pointing out that eliminating the ability to directly deduct union dues does nothing to curb Medicaid spending.

Caitlin Connolly, the director of social insurance at the National Employment Law Project, a union-backed legal advocacy group, told The Intercept the argument put forward by the Trump administration and its Republican allies is misleading because the money spent on dues is taken from workers’ wages, who get to decide how to spend the money that they earn.

“When I look at my paycheck, I get my wages and I decide, thanks to the convenience of my right as an employee, to allocate some of that money to a retirement account, some to a health savings account, and some to my union dues,” she said. ‘It’s my money, and I get to choose how to spend it. Just because the source of these workers’ wages is Medicaid dollars doesn’t mean they don’t have the right to choose how to spend it.”

And since workers are still able to take their wages and spend it on union dues, just without the convenience of direct paycheck deduction, Connolly said this shows the point is to create more hurdles for workers to jump through to exercise their union rights.

“I think there are locals working with members to see how they can handle dues payments in a way that would reduce the burden if direct deposit were restricted, and I think workers are sharing with them ideas on what would be helpful, but there’s nothing easier than saying, ‘I don’t have to think about this, I agree to this, and please take care of it,’” Connolly said.

After Janus, The Country’s Largest Public-Sector Union Takes Stock of Its Movement

Originally published in The Intercept on July 5, 2018.
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The annual meeting of the National Education Association, the country’s largest public-sector union, held in Minnesota this week was much more high stakes than in years past. Typically, the convention is a chance for educators to vote on bread-and-butter issues like budget priorities and advocacy target areas. But the 8,000 or so students, retired teachers, and NEA delegates who descended on the Minneapolis Convention Center had more existential questions on their minds. In the wake of a U.S. Supreme Court ruling that dealt a crippling blow to public-sector unions, they debated strategies to expand their membership, keep union members apprised of their rights, and recover from the impending financial loss that is sure to happen in a post-Janus world.

In Janus v. American Federation of State, County, and Municipal Employees, a 5-4 Supreme Court majority ruled last week that despite laws requiring public-sector unions to represent all workers in a workplace, fees charged to non-members to support the costs of collective bargaining violate the First Amendment. For more than four decades, the Court has held it constitutional for unions to collect money from non-members to support the costs of negotiating contracts on their behalf. Janus overturned that precedent, meaning that employees can now enjoy the benefits of collective bargaining without having to pay for it. Labor unions are bracing for substantial revenue loss.

Now, the choice before teachers is paying either hundreds of dollars in annual membership dues, or nothing at all. The NEA, which represents a little over 3 million members, is forecasting a loss of 370,000 members over the next two years. Approximately 88,000 educators have been non-members paying NEA agency fees, and the union anticipates at least several hundred thousand current members will also rescind their union cards.

“Janus was nothing more than a pretext for the Koch brothers and all their funded-friends to push for union members to drop out,” NEA President Lily Eskelsen García told The Intercept. “With Janus, they don’t care about the [agency] fee payers, they care about reducing our resources and our actual members.” She pointed to the multi-million dollar effort recently launched by a Koch-backed group to persuade dues-paying members to opt-out.

In light of these realities, the NEA approved a two-year budget at its convention that scales back union expenditures by $50 million. Union leadership maintains that this scaleback will not impact the organization’s political activities. “We’re looking at getting economies of scale as best we can,” explained Jim Testerman, the senior director at the NEA’s Center for Organizing. “How many more meetings can we do digitally, can we cut back on food, travel, are there different ways to approach the work. We also didn’t replace 40 staff who retired in January.”

While some states where NEA wields the most influence, like California, New York, and New Jersey, have required non-members to pay agency fees, the recent wave of teacher strikes that exploded across the nation in states like West Virginia, Arizona, and Oklahoma occurred in right-to-work states — which purport to protect workers from being required to join unions, but make collective bargaining more challenging and don’t require agency fees. Conservatives point to the walkouts as proof that agency fees aren’t really necessary. But workers in right-to-work states say they understand their efforts are aided by the national unions, which will certainly take a financial hit from Janus.

Back in the 1980s, when Eskelsen García was a 6th grade teacher, she served as bargaining chair for her union in Utah, a non-collective bargaining state. “There’s still a lot you can do without anyone’s permission,” she said. Just as superintendents and school board members largely supported the teachers who went on strike in red states this year, Eskelsen García said many administrators have shown willingness to bargain with unions even when not compelled to by state statute.

Indeed, at the NEA convention, despite the looming financial threats, the thousands of attendees were palpably emboldened by the teacher walkouts, collective actions that gave them a renewed and clearer sense of their own power. Though the protests were not union-initiated — beginning spontaneously with the grassroots — Testerman, of the NEA’s Center for Organizing, said his union is working to marry “the organic and the organized” as actions erupt. “It’s something we got better with over time, and Arizona was a good example,” he told The Intercept. “You don’t want the union to take it over, but having some organized entity who can get you permits and porta-potties and things like that can help you get even more done.” According to Testerman, Arizona’s NEA affiliate has seen an 8 percent increase in its membership since last year. “I don’t think the walkouts are over,” he added, noting that the future of the movement will depend on what happens in upcoming legislative sessions.

Delegates Reject Proposal to Open Union Membership to Supporters

One of the most contentious items considered at the NEA convention was a proposed constitutional amendment to create a new category of union membership, open to “any person who demonstrates support in advancing the cause of public education” and “advocates for the mission, vision and core values of the Association.”

The idea was formed last year in the wake of Betsy DeVos’s nomination to lead the Department of Education, Eskelsen García explained, when parents and community members flooded the NEA with questions on how they could speak out in opposition to DeVos and better support public education. Then, in the midst of the teacher strikes, the NEA president said, the outpouring support from non-educators proved crucial in building a broad political coalition for the walkouts. Under the proposal, so-called “community ally” members would pay minimal union dues but would be ineligible to vote on union matters or hold governance positions. The biggest opportunity this membership category would create, supporters explained, would be to make it possible for community allies to contribute to the NEA’s political action committee; only NEA members can legally contribute to the PAC, and given the expected decline in membership, this change would have given the PAC an additional stream of funds. The proposal also would have enabled the union to contact supportive members of the public directly. “We’re organizers in our bones,” Eskelsen García told The Intercept. “Why not organize them?”

The proposal triggered heated debate on Tuesday afternoon. Some members voiced concerns about opening up the union to outside political influence. “Selling stockholder shares in our union is a dangerous one,” warned a delegate from Michigan. “When you purchase stock, you expect a return on your investment.” Marshall Thompson, a delegate from Minnesota, called the idea half-baked. “Does my union card mean something or not?” he asked. “Bill Gates should not be able to buy one.”

NEA leadership defended the proposal, explaining that four other major unions, including AFCSME, have a similar membership category for the public, and all but 14 of the NEA’s state affiliates do too. For example, the Pennsylvania NEA affiliate has a “Partners for Public Education” membership category. Plus, NEA leaders added, community allies would have the same $5,000 political contribution limits to the PAC as do regular members. Tripp Jeffers, a delegate from North Carolina, spoke in favor of the amendment, saying a version of it already works well in his state. “We get by with a little help from our friends,” he quipped. Joe Thomas, the president of the Arizona Education Association, also defended the amendment, reminding the audience that the parents and community members who walked alongside educators during Arizona’s six-day teacher strike were instrumental in helping the union rebut the political narrative that their action was solely about teacher wages.

That was not enough to convince the 8,000 delegates, though. The measure was narrowly defeated on Wednesday, with just over 60 percent of delegates voting in favor. Constitutional amendments require a two-thirds majority to pass.

Reauthorization and Affirmative Consent

Janus has also sparked a legal and political debate over whether dues-paying members need to proactively reauthorize their union membership. The majority opinion, authored by Justice Samuel Alito, states that “neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” Conservatives have latched onto this “affirmative consent” idea to say that all those represented by a union, members and agency-fee payers alike, should have to affirmatively opt-in.

But labor groups have taken an alternative reading. At the NEA convention, the union’s general counsel Alice O’Brien told the crowd of delegates that Janus “does not mean that unions have to re-sign existing members. Janus is about fee payers,” she said. “Nothing in Janus supports an employer [who] insists a union must submit new proof that existing voluntary members want to remain members.”

Eskelsen García told The Intercept that the NEA has already received reports of school districts and school boards asking unions to submit new proof of membership. “But Janus doesn’t require that, and part of our mission right now is we have to make sure that our folks across the country understand that Janus was very specific in saying you can’t require a non-member to pay fees,” she said. “It doesn’t require re-signing up members, but we anticipated there would be a lot of misinformation from the Koch brothers and others. We’ll get this straightened out.”

The question over re-commitments first arose three years ago, when the Supreme Court heard the case of Friedrichs v. California Teachers Association, an anti-public sector union case considered to be the predecessor of Janus. (Friedrichs also challenged public-sector agency fees, but Justice Antonin Scalia’s unexpected death in 2016 resulted in a 4-4 decision that left the fees alive until Janus was brought before the court.) Despite the teacher union’s position that re-commitments are not legally necessary, both the NEA and the American Federation of Teachers have been working since then on getting re-commitments from all their members. The AFT reports that out of 800,000 members in 18 states with agency fees, more than 500,000 members have pledged membership renewals since January.

“The re-commit campaigns have really been an organizing strategy to go out and talk to our members about what these Supreme Court cases mean, and the value of belonging and acting collectively,” Testerman told The Intercept. “If members don’t know who the union is and what the union stands for, they are not likely to remain a member and we’re not taking anything for granted.” He said the NEA has seen a growth in membership for the last three years in a row, at an average of 0.5 percent per year.

But the tactics some union affiliates have taken to secure member re-commitments have stirred controversy, and they may be legally vulnerable in the post-Janus world.

In Minnesota, for example, the 86,000-member statewide teachers union asked educators to fill out membership renewal forms for the 2017-18 school year, authorizing the union to deduct dues. The forms included a fine-print disclosure that said “this authorization shall remain in effect and shall be automatically renewed from year to year, irrespective of my membership in the union, unless I revoke it by submitting written notice to both my employer and the local union during the seven-day period that begins on September 24 and ends on September 30. (emphasis added)”

The general counsel for the Center of the American Experiment, a conservative think tank, said the Minnesota teachers union was “betting that most teachers will just sign the card without reading it, or understanding what it means—and just keep paying.”

Los Angeles teachers took a similar approach. In its recommitment campaign, the United Teachers of Los Angeles asked members to sign membership forms with fine print that said, “This agreement shall be automatically renewed from year to year unless I revoke it in writing during the window period, irrespective of my membership in UTLA.” The legal language was first reported by Mike Antonucci, who runs the Education Intelligence Agency, a union watchdog site. “So a teacher who takes an administrative position, or leaves teaching altogether, and is then ineligible to be a UTLA member, will still be on the hook for dues payments until the next window comes around,” Antonucci surmised.

Both the Minnesota and Los Angeles re-commitment forms are constitutional under Janus’s “opt-in” requirement, said Charlotte Garden, a professor at Seattle University Law School. She added that she “also expect[s] the National Right to Work Foundation or other anti-union groups to challenge them in court, arguing they aren’t solicitous enough of objectors.” Garden said those types of challenges will “bring into conflict” two beliefs held by conservative members of the Supreme Court: that unions “must take various affirmative steps to facilitate the rights of objectors they represent” and that “employees should be held to the contracts they sign.”

Some conservative-backed litigation is already coming down the pipe.

Eight NEA state affiliates, including some in New York, Maryland, California, and Washington, are currently targets of class action lawsuits seeking to recover agency fees previously paid to the teacher unions before Janus. “The lawsuit we filed is a refund of the fees that were illegally retracted,” said John Bursch, the lawyer who filed the class action on behalf of California teachers. Alice O’Brien, the NEA’s general counsel, reminded delegates at the convention that whomever replaces Justice Anthony Kennedy, who announced his retirement just hours after siding with the majority in Janus, could help decide whether unions must pay back agency fees or not.

Another case, filed in February 2017, takes square aim at union opt-out rules. In Yohn v. California Teachers Association, Ryan Yohn and seven other California educators objected not only to paying agency fees but also to bureaucratic hurdles employees must go through if they want to opt-out of union membership. The teachers argue workers should have to affirmatively opt-in to a union, not opt-out. “We’re not free-riders, we’re forced riders,”one plaintiff told Education Week in February. The case is being brought by the Center for Individual Rights, the same libertarian law firm that brought the Friedrichs suit.

Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School, told The Intercept that she has no doubt that conservative groups will aim to push the limits of the Supreme Court’s holding in Janus for cases like Yohn. “I’m afraid that Janus has opened up additional fronts in the war these groups are waging on public-sector unions and the labor movement more generally,” she said. “We will see litigation for years.”

Union-Friendly Legislation in the Wake of Janus

In anticipation of a Supreme Court decision striking down agency fees, unions have been lobbying state legislators for the last few years to support new bills that could help labor strengthen its position. Specifically, labor organizations have pushed for new measures that would more easily allow union representatives to make the case for membership to new public-sector employees and to limit the services unions have to provide to non-members.

Last year in California, the legislature passed two such bills: one that allows public-sector unions to give presentations to new employees during their job orientations, and another that restricts what government employers can say to their staff about the pros and cons of joining a union. Two bills are pending now that would give labor groups an opportunity to weigh in on a worker’s intent to cancel their union dues.

Maryland legislators passed a bill this spring requiring new teachers to meet with a union representative within 30 days of their hiring or by their first pay period. It became law in April without the signature of Gov. Larry Hogan, a Republican.

New Jersey Gov. Phil Murphy, a Democrat, signed a more expansive bill in May that gives unions a number of new protections, including the right to meet with new employees for at least a half hour within 30 days of being hired and a guarantee that public employers will provide the union with exclusive representation contact information for all new employees.

In New York, Democratic Gov. Andrew Cuomo in April signed what he called “the Janus bill,” which in addition to providing unions with contact information for all new public-sector workers, also makes clear that unions are not required to provide non-members with the full range of union services. For example, non-members facing disciplinary charges will now have to obtain their own attorneys, whereas the union covers legal representation for dues-paying members. Last week, immediately following the Janus decision, Cuomo issued an executive order to protect public employee contact information from those who may try to target them in union opt-out campaigns. It was mostly a symbolic gesture, since the state already has similar privacy protections on the books.

Aside from these bills, Sharon Block of the Labor and Worklife Program at Harvard Law School and Benjamin Sachs, a Harvard Law School professor and editor-in-chief of the On Labor blog, put forth another legislative proposal to help unions cope after Janus. “The simplest, and the most effective, move would be for states to change, quite subtly, the accounting system for union dues,” they wrote last week in Vox. While unionized public-sector workers currently earn about 17 percent more than their non-unionized counterparts on average, the now-unconstitutional agency fees have comprised about 2 percent of that wage premium. Under the system reviewed by the Supreme Court, employers paid this 2 percent to workers, and workers then had to pay that money back to the union as an agency fee. “But if public employers simply paid the 2 percent directly to the unions — giving the same 15 percent raise to employees but not channeling the extra 2 percent through employee paychecks,” Block and Sachs wrote, “then there would be no possible claim that employees were being compelled to do anything, and thus no constitutional problem.”

“We’re up against something pretty scary,” Lily Eskelsen García said this week in Minneapolis, speaking before thousands of delegates. “Janus is the latest attack on our union, but this ain’t our first rodeo… We don’t get scared, we get ready.”

Supreme Court’s Janus Decision Opens A “Pandora’s Box” For Public-Sector Unions

Originally published in The Intercept on June 28, 2018.
——

Six years after Supreme Court Justice Samuel Alito first signaled his interest in striking down agency fees on First Amendment grounds, he authored a crushing blow to public-sector unions in a giddy 5-4 opinion issued Wednesday.

Janus v. AFSCME resolved whether agency fees, also known as “fair-share fees,” can be collected from public-sector employees who do not wish to be members of a union. Under the law, a public-sector union has to represent all workers in a workplace, irrespective of whether they opt to be union members. Charging agency fees has historically enabled unions to avoid the free rider-problem — without them, employees could enjoy the benefits of collective bargaining without paying the dues required to support union activities.

This week, the Supreme Court affirmed that no agency fee or any other form of payment can be deducted from an employee, “nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” The decision has immediate ramifications for the nearly 7 million state and local government workers represented by a union, of which 58 percent are women and 33 percent are African-American, Asian-American, Pacific Islander, and Latino. There are 17.3 million public-sector workers across the nation.

For more than 40 years, the Supreme Court has held that there’s a constitutional difference between a union’s political activities and its collective bargaining work. Compelling workers to fund the former would infringe on their freedom of speech, the court ruled in 1977 in a unanimous decision known as Abood v. Detroit Board of Education. But, the justices determined in Abood, requiring agency fees to support collective bargaining work was constitutional. Now the court has taken a knife to that distinction.

Many expected this outcome two years ago, when the court heard Friedrichs v. California Teachers Association, a case in which 10 public school teachers challenged the constitutionality of their mandatory agency fees on First Amendment grounds. While the 9th Circuit Court of Appeals disagreed with the teachers’ position, the Supreme Court seemed inclined to side with the challengers. But when Justice Antonin Scalia unexpectedly died in February of 2016, the court ended up issuing a 4-4 decision, preserving the 9th Circuit’s ruling. On Wednesday, the conservative members of the court got a second bite at the apple.

Writing for the majority, Alito was extremely dismissive of AFSCME’s argument that labor organizations will be less effective if agency fees are struck down. To support its case, Alito pointed to the 28 states that currently have laws on the books prohibiting agency fees as proof that those fees are not essential to avoid conflict between competing labor advocacy groups — something both U.S. employers and American labor law discourage.  Even without agency fees, Alito argues, workers in 28 states enjoy exclusive representation.

“Whatever may have been the case 41 years ago when Abood was decided, it is thus now undeniable that ‘labor peace’ can readily be achieved through less restrictive means than the assessment of agency fees,” the majority opinion reads.

When it comes to the free-rider problem, the court was similarly dismissive, citing the arguments raised by unions as “insufficient to overcome First Amendment objections” and not representing a compelling state interest to begin with.

In the dissent, authored by Justice Elena Kagan and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, Kagan writes that the majority “fails to reckon with how economically rational actors behave.” She argues that the majority ignores the basic fact that public-sector unions must represent all workers in a workplace, in contrast to private groups that can choose to represent only those who actively opt-in. Kagan also notes that the “Court today wreaks havoc on entrenched legislative and contractual arrangements,” rendering thousands of city, county, and state contracts across the country illegitimate. In other words, previously existing collective bargaining agreements in the public sector will now need to be re-negotiated, many of them all at once. New York City, for example, currently has agency fees in 144 contracts with 97 different public-sector unions. “[The majority dismantles these agreements] with no real clue of what will happen next — of how its action will alter public-sector labor relations,” the dissent states. “It does so even though the government services affected — policing, firefighting, teaching, transportation, sanitation (and more) — affect the quality of life of tens of millions of Americans.”

Conservatives immediately cheered the decision.

“The Supreme Court has freed millions of American workers from manipulation by union bosses that misrepresent their interests,” said Tim Huelskamp, president and CEO of the right-wing Heartland Institute, in a statement. “On the heels of this decision, every state should move quickly to certify that no American worker is ever compelled to give their hard-earned money to support self-serving union bosses.”

The plaintiffs in Janus and the cases that helped lay the legal foundation for it were supported by a web of conservative legal advocacy groups and right-wing foundations, including the Center for Individual Rights and the National Right to Work Legal Defense Foundation.

In a statement released after the Janus decision, Lee Saunders, president of AFSCME, declared that “despite this unprecedented and nefarious attack” the “American labor movement lives on, and we’re going to be there every day, fighting hard for all working people, our freedoms and for our country.”

Randi Weingarten, president of the American Federation of Teachers, echoed the dissenting judges, calling the Janus decision “a warping and weaponing of the First Amendment, absent any evidence or reason, to hurt working people.”

While unions are resolving publicly to fight back, they have also begun to prepare for the worst. The National Education Association, for example, which is the nation’s largest public-sector union, is forecasting a loss of 307,000 members over the next two years, and is planning to reduce its expenditures by $50 million during that period. There are currently 3 million members in the NEA.

Progressive economists say that Americans should expect to see economic inequality increase as public-sector unions adjust to a post-Janus world. According to the left-leaning Economic Policy Institute, “[a]s union membership has fallen over the last few decades, the share of income going to the top 10 percent has steadily increased.” When union membership peaked at 33.4 percent in 1945, the share of income going to the top 10 percent was 32.6 percent. By 2011, when union membership was down to 11.1 percent, the share of income going to the top 10 percent reached 48 percent. The gap is even more stark when it comes to wealth: In 2017, the top 1 percent of American households owned 40 percent of the nation’s wealth, a higher share than at any point since 1962. The top 1 percent owns more wealth than the bottom 90 percent combined. EPI attributes these trends to the lack of bargaining power that non-union workers have to negotiate their wages, among other factors that have made wealth distribution more unequal.

The Janus decision, though long expected, begets a new period of uncertainty in American labor relations. As The Intercept previously reported, some labor activists, like those in the International Union of Operating Engineers, argue that Janus may have some unintended consequences that empower unions. If, as per Janus, collective bargaining is speech, then it is subject to powerful First Amendment protections. The majority may have inadvertently opened up the floodgates for countless new union-led lawsuits against governments that try to restrict their speech, by, for example, limiting the scope of their contract negotiations to predefined topics. Dismantling Abood, they say, could open “a tremendous Pandora’s box.”

Radio show on Janus v. AFCSME and striking teachers

I was kindly invited onto a California radio show, Beneath the Surface, yesterday to talk about recent happenings in the world of labor — namely the Supreme Court case challenging public sector union agency fees and the recent West Virginia teacher strike  and potential teacher strike in Oklahoma.

I was joined by Shaun Richman, a regular source of inspiration for my labor stories.

Can listen here: http://archive.kpfk.org/index.php?shokey=bts_friday

The Right Is Trying to Bring Down Public Sector Unions. It May Bring Much More Down With It.

Originally published in The Intercept on February 25, 2018.
——

In the middle of last week, Dixon O’Brien, a 60-year-old engineer, and his union, the International Union of Operating Engineers Local 150, quietly filed a federal lawsuit against Lincolnshire, a village in a northern suburb of Chicago. Together they raised issue with Lincolnshire officials using taxpayer dollars to fund a statewide lobbying group, the Illinois Municipal League, which advocates for things like limiting collective bargaining and reducing pension benefits. “O’Brien objects to the use of his tax money to fund private organizations that lobby and/or engage in other political activities that run directly against his economic interests and his political beliefs,” the complaint reads.

On Thursday, the head of the same union filed a federal lawsuit against Illinois Gov. Bruce Rauner, challenging portions of state law that requires unions to provide representational services to non-dues paying members. “It is absurd that state law forces unions to provide equal representation and service to public sector workers who are not members and pay nothing toward associated costs,” said union President James Sweeney in a statement.

And then on Friday, the International Union of Operating Engineers Locals 139 and 420 filed a federal lawsuit against Wisconsin Gov. Scott Walker, challenging a law he signed in 2011 that dramatically restricts public employee collective bargaining rights. The unions argue that the law’s restrictions impinge upon their protected free speech rights under the First Amendment.

These three consecutive lawsuits are a warning to the Supreme Court that if it buys into an extreme conservative argument being used to undermine labor unions, the justices are going to take a lot more than just agency fees down with them.

On Monday the Supreme Court will hear oral arguments in Janus v. AFSCME, Council 31 – a case experts have long predicted could strike a mortal blow to public sector unions. The plaintiff, an Illinois state worker named Mark Janus, has argued that he has a First Amendment right to avoid paying anything to a union that bargains on his behalf. With the current ideological leanings of the court, the plaintiff — and the conservative groups backing his lawsuit — face strong odds of victory.

But while most of the media has focused on the fact that the Janus case stands to decimate union coffers – and by extension, Democratic Party coffers – some labor activists and legal scholars have begun sounding the alarm on what they say would be the unintended consequences of the suit, effectively opening up the floodgates for countless lawsuits like the recent ones filed by the International Union of Operating Engineers. If Mark Janus doesn’t have to pay his agency fees because collective bargaining is speech he disagrees with, then collective bargaining is speech. And it can’t be restricted. Indeed, when some of the lazier advocates of Janus lay out the case, they accidentally argue on behalf of  unions’ right to free speech. “Because government is both employer and policymaker, collect­ive bargaining by the union is inherently political advocacy and indistinguishable from lobbying,” wrote George Will on Sunday, directly implicating the First Amendment.

For more than 40 years, the Supreme Court has held that there’s a constitutional difference between a union’s political activities and its collective bargaining work. Compelling workers to fund the former would infringe on their freedom of speech, the court ruled in the 1977. But under current law, collective bargaining is different. Imposing conditions, such as requiring mandatory dues, or limiting the scope of their negotiations to wages and benefits, is fair game.

If the Janus plaintiffs win their case, this critical distinction would be dismantled. (A decision is expected by June, when the court’s term ends.) A union’s bargaining and political lobbying would be treated the same — as protected free speech. In other words, the court would actually be elevating the free speech standards of bargaining. That, in turn, could bring with it new legal protections.

“If the plaintiffs are right that collective bargaining is political speech indistinguishable from lobbying, well, the flip side of that coin is that that protected free speech can’t be restricted,” said Ed Maher, a spokesperson for the International Union of Operating Engineers. “We don’t think this has been thoughtfully considered by the plaintiffs, and it is our belief that a win for Janus will open a tremendous Pandora’s box.”

This Pandora’s box, Maher suggested to The Intercept, holds all sorts of chaotic possibilities for the U.S. legal system and state governments across the country. Nearly all states impose some form of restriction on collective bargaining, limiting who can bargain and what workers can bargain over. If the Janus plaintiffs win in court, the theory goes, then workers could start bringing First Amendment challenges to limitations on their bargaining rights, like the restrictions Walker, the Wisconsin governor, passed in 2011.

And, as the three cases filed last week demonstrate, they’ve already started.

Courts have long sought to avoid applying First Amendment rights to unions. From the earliest court decisions that concerned worker protests in the 19th century, as labor writer and strategist Shaun Richman has written, judges have tended to treat unions “as criminal conspiracies that interfere with employers’ property and contract rights.” And while courts have chipped away further at the free speech rights of workers and unions over the last half-century, they have also expanded the free speech protections afforded to employers and corporations.

Ann C. Hodges, a labor law professor at the University of Richmond agrees that a win for the Janus plaintiffs could invite all sorts of new legal challenges. Writing recently for the American Constitution Society, Hodges said:

Courts have regularly ruled that states like Wisconsin can provide collective bargaining rights to some groups of employees and not others, using the rational basis test to find no equal protection violation… But if all union activity is protected political speech, then these distinctions implicate fundamental rights, invoking strict scrutiny for such classifications. Thus, the differential treatment of employee groups by the states may not survive. Indeed, unions may even have an argument that there is a constitutional right to collective bargaining.

Equally unlikely to survive are many governmental employer restrictions on employee speech. A long line of cases allows government employers to impose various restrictions on employee speech. The Supreme Court distinguishes employee from citizen speech, permitting employers to limit and control employee speech in the interests of the government as employer… A ruling in favor of the Janus plaintiffs could obliterate the distinction, requiring employers to tolerate much unwanted speech by their employees.

Some left activists remain understandably skeptical that Janus could lead to some interesting or even good opportunities for labor, arguing, as Richman wrote, that a judiciary that “that could buy such a craven argument as Janus will refuse to take the precedent to its logical conclusion and shamelessly waving away workers’ free speech rights.” But if the anti-Trump backlash leads to a wave of liberal judge appointments, the legal landscape could grow significantly more friendly for unions over the next few election cycles. Plus, unless Janus ends with an extremely narrow ruling, it would be a while before the Supreme Court could really stamp out all the knock-on cases, even if it wanted to. In other words, legal chaos could reign for years in the lower courts.

Richman goes so far as to say that Janus “could hand new liberal majorities a roadmap for restoring a legal balance of power between corporations and workers.” Or, as Sweeney of Local 150 puts it, “The free speech rights being invoked by the union-busters behind Janus work both ways.”

How Labor Is Thinking Ahead to a Post-Trump World

Originally published in The Intercept on January 21, 2018.
—–
The American labor movement, over the past four decades, has had two golden opportunities to shift the balance of power between workers and bosses — first in 1978, with unified Democratic control of Washington, and again in 2009. Both times, the unions came close and fell short, leading, in no small part, to the precarious situation labor finds itself in today.

Just over 10 percent of workers are unionized, down from 35 percent in the mid 1950s. Potentially, though, a wave of Democratic victories in 2018 and 2020 could give labor groups one last chance to turn things around. With an eye toward that moment, labor’s leading strategists are coming together to build a program that avoids the mistakes of the last two rounds.

Strike One: 1978

The National Labor Relations Act — a foundational law that guarantees the rights of private sector employees to unionize — was passed in 1935, and more than 40 years later, President Jimmy Carter, urged on by the AFL-CIO, came out in support of federal labor law reform. “The purpose of this [proposed] legislation is to make the laws which govern labor-management relations work more efficiently, quickly, and equitably and to ensure that our labor laws fulfill the promise made to employees and employers,” Carter said at the time.

The law would have addressed a number of issues that still remain on labor’s agenda today, such as faster union elections and tougher penalties for employers who refuse to bargain and violate labor law. “We didn’t try for revolutionary things; we pushed for things we thought we could get broad support for,” said Ray Marshall, who had served as labor secretary in the Carter administration. But with 59 votes in the Senate, a 44-year-old freshman Republican from Utah, Orrin Hatch, had filibustered the law, and it failed.

One of the revolutionary things the administration did not try for was the Humphrey-Hawkins Full Employment bill, which guaranteed a federal job to anybody who wanted one. It represented the height of labor’s aspirations coming out of the Great Society and what liberals (at least the ones who had not turned toward the free market as the answer) saw as one of the final legs of the stool. Carter was having none of it, and a much-weakened version went through instead. Anger at Carter’s inability to deliver for labor led many unions to back the primary challenge launched by Sen. Ted Kennedy, D-Mass. Despite Carter’s reputation as a progressive and the good work he has done since leaving office, his presidency is not remembered fondly in many union households.

Strike Two: 2009

The labor movement had another rare opportunity in 2009. Barack Obama had won the presidency, and Democrats not only took over Congress, but also seized an unexpected 60-vote, filibuster-proof majority in the Senate. Labor wasted no time vocalizing its demand for the passage of the Employer Free Choice Act, a law known as EFCA that would have given workers the right to join a union as soon as a majority of employees signed cards in support of the move. The legislation also would have stiffened penalties on employers who violated labor laws and forced recalcitrant employers to negotiate contracts with new unions.

The unifying idea behind these three reforms was that policies were needed to make it easier for workers to form unions and bargain contracts once they did. Research at the time showed a steep rise in the illegal firings of pro-union workers in the 2000s, and the National Labor Relations Board election process — to certify or decertify a union as a unit’s bargaining representative — was widely seen as tilted toward anti-union employers. Even when workers did vote for union representation through NLRB elections, many employers then refused to bargain, with only 38 percent of unions securing a contract within a year of certification.

Unions started discussions around EFCA in 2003, when Republicans controlled Congress and the White House. In 2007, Kennedy and Reps. George Miller, D-Calif., and Peter King, R-N.Y., introduced the bill, which passed in the House 241-185 — including 13 votes from Republicans. Though EFCA also had majority support in the Senate, it was blocked by a Republican filibuster.

So when Democrats took control in 2008, with a filibuster-proof majority to boot, the prospect of EFCA’s passage was tantalizing.

In 2009, progressives believed the odds were in their favor — all it would take was getting the votes of all 59 Democrats and independents, and hanging on to Arlen Specter, the Republican senator from Pennsylvania who co-sponsored the 2007 bill. Unions predicted they could add at least 5 million members to their rolls in just a few years if EFCA were to pass.

The business community hated EFCA, correctly recognizing that it would have shifted power relations between workers and employers. “This will be Armageddon,” the vice president for labor policy at the Chamber of Commerce complained. Before his inauguration, Obama told the Washington Post he knew the business community saw EFCA as “the devil incarnate.”

But the politics ended up being far more treacherous than labor anticipated — or perhaps more than the movement allowed itself to see.

“We never had 60 votes for EFCA, we just didn’t,” said Sharon Block, who worked as senior labor counsel for Kennedy on the Senate committee on Health, Education Labor, and Pensions in 2008. “We didn’t have all the Dems, even though we were closer than we had been before.”

Though EFCA tackled several areas, the provision that remains most memorable is “card check,” which would have allowed workers to form a union once a majority signed pro-union cards. (Labor organizers prefer the term “majority sign-up,” but card check is what stuck.)

The proposal was deeply controversial, in part because unions found it tough to explain why they were discouraging NLRB elections, in which workers could vote by secret ballot. Suddenly, Democrats and unions found themselves on the defensive, pushing back against arguments that they were anti-democratic. EFCA opponents argued they were merely trying to protect workers from coercive employee pressure — a talking point that resonated even as they expressed no similar concern regarding the similar, well-documented pressure coming from employers.

“There was a lot of not terribly sexy, but good reforms in EFCA to shape public opinion along the lines of fairness and stopping intimidation, but instead the conversation was about fattening the coffers of union bosses through anti-democratic methods, that unions don’t want you to have the right to vote,” recalled Louis Nayman, who worked then as a director of organization at the American Federation of Teachers. “Opponents even got George McGovern, the darling of the left, to do a 60-second anti-EFCA ad paid for by [anti-union activist] Rick Berman.”

Labor leaders still disagree about the reasons for EFCA’s failure.

Some say it’s the fault of moderate Democrats — like former Sen. Blanche Lincoln from Arkansas — who said she’d only vote for the bill if the card check provision was removed. (Lincoln lost her re-election bid to a Republican in 2010.)

Others blame Obama for not prioritizing the legislation, instead putting his energies and political capital behind health care reform.

And some say it had to do with a weak ground game from the labor movement and progressives, who never really mobilized the public enough to hold Congress and the president accountable. “There was this ‘Hey we just got you elected and now you owe us’ way of thinking about the world,” said Ken Jacobs, chair of the Labor Center at the University of California, Berkeley. “Obama at some point said, ‘You’ll have to make me do it,’ and that was not taken seriously to the degree it needed to be. To do something that will significantly shift power relations in the U.S. cannot be done quietly as a negotiated deal, it cannot happen without a loud clamor for it. It needs to be big enough and presented in ways people can understand.”

Block, the former lawyer to Kennedy in the Senate, doesn’t think Obama’s lackluster advocacy really made much of a difference. In fact, she said, some version of EFCA probably would have gotten through, but the final blow came when Senate Democrats lost 60 votes following Kennedy’s death. When the Massachusetts Democrat died of brain cancer in August 2009, he was succeeded by Republican Sen. Scott Brown, and the filibuster majority was no more, and EFCA never came up for a vote again.

The cost of losing EFCA was devastating, said Block. “We had put all of our eggs in that legislative basket and we didn’t win. And we really haven’t seen fundamental labor law reform since then.”

Carrie Gleason, who directs the Fair Workweek Initiative at the Center for Popular Democracy, said EFCA would have generated momentum to do even more, but after it failed, “the labor movement lost steam on a broader agenda.”

Though it was unsuccessful, Nayman, who is now retired, thinks the movement to pass EFCA alarmed and energized mainstream Republicans, who were suddenly fearful that unions might dramatically boost their membership, thereby increasing Democratic power throughout the United States.

“Right-wing funders capitalized on that and said, ‘Let’s never be put in this position again, let’s go after their money,’” said Nayman, who draws links between EFCA’s failure and Wisconsin Gov. Scott Walker’s subsequent rise to power, which came in part as a result of his focus on weakening public sector unions.  “When you aim to shoot the king, you better kill him, and with EFCA that didn’t happen,” Nayman said. “Every action has a reaction.”

“During the EFCA fight, I think there was a lot more energy on the business side, it felt like there were more people being brought in to canvass against it than there was union rank-and-file being brought to pressure Congress,” reflected Lawrence Mishel, who led the Economic Policy Institute, a pro-labor think tank in D.C., for decades until his retirement in December.

One consequence of failing to pass anything major on the federal level was a shift to state and local labor organizing — turning to city councils, legislatures, and ballot initiatives. The Fight for $15, for example, took off in 2012 and over the next five years, led to a wave of successful efforts to raise the minimum wage, pass fair scheduling bills, paid sick days, and paid family leave.

“A lot of us looked at the Fight for $15 in the beginning and thought they were out of their minds,” said Jacobs. “But they ended up changing the whole debate, in part by going out with clear, bold demands everyone could understand.”

But one result of all those local gains has been a push by Republicans in states to pass “preemption” laws, which prohibit local governments from passing laws on certain issues, effectively blocking cities from passing progressive legislation. “We’ve made tremendous gains, but with Republicans pushing for national preemption, everything is at risk if we don’t organize and build power in Congress,” said Gleason.

A Better Deal and Beyond

In 2017, a group of prominent congressional Democrats, including Senate Democratic Leader Charles Schumer and House Democratic Leader Nancy Pelosi, unveiled a package of labor reforms, under the banner “A Better Deal for American Workers.” The package includes ideas to strengthen the right to strike (by banning the permanent replacement of striking workers), push for mechanisms to ensure employers negotiate a first contract with unions (similar to what was proposed in EFCA), and ban so-called right-to-work laws, which have allowed workers to shirk paying fees to unions that represent them.

Mishel, the recently retired economist, called the Better Deal ideas “seriously bold” and Jacobs of UC Berkeley agreed, adding that the proposals seem to reflect “a much deeper understanding” among Democratic leadership and Democratic thinkers of what ultimately needs to be done. (Card check is notably not included in the list of Better Deal proposals.)

Also on the table is a bill called the Workplace Action for a Growing Economy Act, backed by the labor federation AFL-CIO. The WAGE Act would make it easier for workers to organize, stiffen penalties against employers who violate labor law, and give workers the right to file discrimination lawsuits if they’re punished for union activity.

At AFL-CIO’s convention in October, the union passed a resolution pledging to protect workers’ right to organize, heighten employer penalties, make negotiating first contracts easier, and protect immigrant workers from exploitation and retaliation.

Damon Silvers, director of policy and special counsel at AFL-CIO, told The Intercept that the group’s immediate strategy is to focus on those four planks and push for the WAGE Act, ultimately launching a longer-term conversation about what more fundamental change is needed.

The looming question is whether these ideas are enough to confront the challenges faced by working people in 2018. Most labor experts agree that if these proposals had passed back in 1978, when Hatch famously filibustered attempts at reform, economic inequality could look very different today. But what about now?

Larry Cohen, Our Revolution board chair and former president of the Communications Workers of America, said labor should aim higher, since no Republican would vote for any of the Better Deal ideas anyway. “If our frame is collective bargaining, how does that look in the rest of the world, and why do we come up short?” Cohen asked, noting that it’s much harder to bargain collectively in the United States compared to many other democratic countries. “Everyone lectures us about the global economy, and we need to lecture back,” he said.

In the meantime, labor is sliding backward. The Supreme Court will issue a decision later this year that could severely weaken public sector unions, and President Donald Trump’s National Labor Relations Board is doing its very best to overturn critical pro-worker decisions issued during the Obama era. And, because the basic structure of the National Labor Relations Act hasn’t changed much since it was first established in 1935, employers have had decades to develop new legal strategies to weaken the law; their strategies include forced arbitration and misclassifying workers as independent contractors.

A number of creative proposals have been floated recently — and might attract attention from progressive legislators looking for ways to stand out in a competitive 2020 primary.

Among these ideas include a push to end at-will firing, and a call for workers to demand their rights be treated as constitutional rights. “I think this frame is very helpful to talk about the core of what it means to have more of a say at your job,” said Gleason. “The right to free speech at work, the idea that your employer can’t just fire you because they don’t like you or because you spoke up about your beliefs. … I think people in America don’t really realize how powerless they are at their jobs until it’s too late.”

Other ideas include exploring so-called sectoral labor standards — where workers across entire industries, such as all finance workers or all retail workers, bargain collectively. Sectoral bargaining has been an important lever for workers in countries like France, Germany, and Brazil. Right now in the United States, workers collectively bargain with their individual employers, but sectoral bargaining would mean negotiations could take place industry-wide.

“If there’s anything we’ve learned from the Fight for $15 and a union is that the need for real transformative demands are important,” said Sarita Gupta, executive director of Jobs With Justice. “People want demands that are worth the risk.” Gupta’s group is exploring proposals like the idea of universal family care and “co-enforcement,” under which community-based organizations would partner with workers to help enforce progressive labor laws.

Jacobs said pushing for joint-employer liability, meaning pushing legislators to end corporations’ ability to shirk legal responsibility through franchising, also needs to be on the table. While the NLRB under Obama started to address this issue through a critical decision issued in 2015, the NLRB reversed the ruling last month, making it once again extremely difficult to hold corporations liable.

Nayman hopes to see a greater willingness among progressives to reach out to moderate Democrats on labor reform. “I would not start my conversation with Bernie Sanders or Sherrod Brown, I would start with the Blue Dogs, because you’re going to need them too,” he said. “Rather than treating moderates as enemies and sellouts, recognize that we’ll need them on board for this.”

“The lesson [from EFCA] is you don’t wait until the wave hits, you begin to work when times look tough,” added Bill Samuel, director of government affairs at AFL-CIO. “So we’ll begin drafting and introducing legislation, which we’ve done in terms of the WAGE Act, and we’re going to work on getting support from members and candidates.”

Unions should precondition endorsements for candidates on a commitment to support the WAGE Act, he added. “The lesson is get to work, regardless of the political environment you’re in, build support, awareness, and be ready.”