Coffee Break 2-26-18: Janus v. AFSCME

Oral arguments today in Janus v. AFSCME

QUOTE(S) OF THE DAY

Now, what does all of this mean in this great period of history? It means that we’ve got to stay together. We’ve got to stay together and maintain unity.

The issue is injustice. The issue is the refusal of Memphis to be fair and honest in its dealings with its public servants, who happen to be sanitation workers.

Let us rise up tonight with a greater readiness. Let us stand with a greater determination. And let us move on in these powerful days, these days of challenge to make America what it ought to be. We have an opportunity to make America a better nation.

–excerpts from Martin Luther King, Jr., “I’ve Been to the Mountaintop,” delivered April 3, 1968, one day prior to his assassination during the Memphis public sanitation workers’ strike

Today is a historic day for public unions: oral arguments are scheduled before the Supreme Court on Janus v. AFSCME.

Yesterday we linked on DeedSpeakOut’s FB page to several background pieces which considered various facets of the Janus case. Here is a selection, plus additional links relevant to the case and its wider implications.

• SCOTUSblog’s Amy Howe has the summary of the issue(s) at stake in the case, plus background (with links) to its predecessor cases, starting from Abood v. Detroit Board of Education (1977) (the precedent case appellant Mark Janus is asking the court to overturn), followed by Harris v. Quinn (2014) which, like Janus v. AFSCME, came out of the 7^th Circuit, and most recently, Friedrichs v. CTA (2016), out of the 9^th Circuit. The last case remained essentially undecided, given Justice Antonin Scalia’s death in February 2016 and a consequent 4-4 decision, leaving the issue for future adjudication.

A lot is at issue in this case – some might claim that the future of unions in the U.S. is, ultimately, at stake – but the question before SCOTUS is fairly straightforward: should public workers (i.e. civil servants employed by the state) be required to pay so-called “fair-share fees” (also called “agency fees” and “shop fees”) to their union, even if they have opted out of membership? (In Janus, this union is AFSCME Council 31 in Illinois; Janus is a child support specialist with the state’s Department of Healthcare and Family Services; the “fair-share fee” is about $24.00 a pay period, or 78% of full union dues).

Janus argues that the fair-share fee is an infringement of his First Amendment free speech rights, since the union bargains for things and essentially exercises a form of political speech he does not agree with/believe in. Janus argues, further, that there is no need for collective bargaining at all, as the state could simply decide employment policies on its own.

Here’s Howe on the issue:

Janus’ argument in the Supreme Court for overturning Abood rests on the idea that, because issues like salaries, pensions and benefits for government employees are inherently political, agency fees – even if characterized as the costs of contract negotiations – actually finance speech that is intended to influence the government’s personnel policies. Therefore, he contends, requiring him to pay an agency fee is no different from requiring him to subsidize a group that lobbies the government. He points out that when the union was bargaining with the state, the state wanted to save money on health insurance and indicated that it could not afford across-the-board salary increases, but the union “took opposite positions.”

Because an agency fee effectively requires him to speak, he continues, the Supreme Court must subject it to heightened constitutional scrutiny – which it cannot survive. First, he asserts, the government does not have a pressing need to bargain only with unions – indeed, it doesn’t need to bargain at all and instead could simply decide on employment policies. But even if there were such a compelling need, he adds, unions don’t need to require all employees to pay for that bargaining, because unions presumably would want to do it anyway.

• Next up: a “legal explainer” accessible to laymen on the issues to be decided:

This piece, by Moshe Marvit for The Century Foundation, does an exemplary job of laying out the major arguments presented in the more than 70 amicus briefs that have been filed. As he points out, these briefs on behalf of both appellant and respondent may prove more important than they often do, given that the 7^th Circuit refused to hear the case at all (in fact, it hasn’t been argued before any court to date), so the paper trail of thinking on the case itself is very thin.

Marvit also provides a summary of the cases that preceded Janus. Here’s one paragraph which covers legal ground not explored by Howe:

Groups such as the National Right to Work Committee have been litigating the issue of whether fair-share fees violate the Constitution for decades. In fact, National Right to Work represented the petitioner in Abood. Over the last few years, however, Supreme Court Justice Alito has issued a string of stinging decisions that have laid the groundwork for overturning the Court’s 1977 Abood precedent, which permitted fair-share fees in the public sector. Starting with Knox v. SEIU in 2012, Alito cast doubt on the Court’s precedent regarding fair-share fees as having “recognized that such arrangements represent an ‘impingement’ on the First Amendment rights of nonmembers.” In extensive dicta, Alito questioned the constitutionality of fair-share fees, as well as that of the opt-out regime (whereby objectors have to opt out, rather than having members opt in), and explained that the Supreme Court had never critically examined these issues. Alito essentially invited new First-Amendment challenges to the very issue of fair-share fees in the public sector.

• We recommend this Belabored podcast (no transcript; relevant section begins at 17:00 and concludes at 54:00) in which Sarah Jaffe and Michelle Chen speak at length with Shaun Richman, a former AFT organizer, about unions, with no holds barred. Everything’s up for re-consideration – times are changing, rapidly, and this may not be such a bad thing after all.

Re: Janus, Richman noted that some amicus briefs (including briefs by prominent legal thinkers who are in fact libertarians) present strong arguments against ruling for the petitioner (Janus), with the result that he now puts the odds of SCOTUS finding in favor of Janus at 80% – down from 95% a couple weeks ago.

Richman is inspiring, and willing to adopt out-of-the-box thinking about where labor unions might go next in the wake of what is anticipated to be a ruling for the appellant: Let’s revisit Taft-Hartley, and the National Labor Relations Act (1935); let’s re-visit forced arbitration, let’s transform “at-will” employment to “just cause” dismissal. And Richman is open to both federal-level legislation/policies as well as at the level of individual states.

This case is in some ways a nadir for labor in the U.S., but Richman isn’t disheartened. And he’s extremely knowledgeable about labor issues across the board.

• Jan Resseger reminds us that America’s public school teachers are union members, and when they fight for themselves they’re also fighting for a better education for their students (in fact, Abood and Friedrichs also involved teachers, so it’s a good thing to keep in mind – Janus, as a child support officer, represents a bit of an outlier). Resseger uses the recent negotiations conducted by the St. Paul (MN) Federation of Teachers and their school district, which were concluded just hours before a strike was set to go into effect, to make her point.

She concludes with respect to Janus:

As we watch what happens with the Janus case later this spring, it will be important to remember that in St. Paul, Minnesota, as the teachers’ contract came up for negotiation this winter, the teachers demanded as negotiating points the expansion of programs needed by their students. The St. Paul Federation of Teachers lifted up the need to reduce class size, improve education services for English learners and special education students, and redesign the discipline system to focus on mediation and reconciliation rather than harsh punishments. And the union made a point of challenging tax breaks to benefit corporations and the wealthy, who, teachers insisted, should be supporting the wellbeing of the community and its children.

• One might be inclined to object, in Janus’s case, that AFSCME doesn’t negotiate with the state on issues like students and education issues, issues that help members but also benefit recipients of their service.

But that wouldn’t be the case. Illinois’ Department of Healthcare and Family Services, for which Janus works as a child support specialist, has been hit hard by staffing/funding cuts, and subjected to privatization of key services; one of the areas that’s been hardest-hit is that of foster care services over the past few years under the state’s Republican governor Bruce V. Rauner, the “I’m not in charge” governor, the “Because Madigan” governor, the governor of no state budget for more than two years, the governor of Moody’s downgrading state bonds to one grade above junk level – all in under three years.

Some background on a tragic case that involved a member of Janus’s own union, AFSCME Council 31: Last September, a Department of Children and Family Services employee was attacked and severely beaten by the father of a toddler whose grandparents’ home she had been tasked with visiting. It was noted that the DCFS employee visited the home alone (despite concerns about her safety) due to cuts in staff by Rauner, who would prefer to cut all social benefits programs if he could.

On February 8, the employee, Pamela Knight, passed away at the age of 59 following four months in a coma. Here’s what AFSCME 31 is doing in the wake of her death:

The American Federation of State, County and Municipal Employees Council 31, which represents DCFS workers, has indicated it would support the legislation. [introduced by IL state Senator Tim Bivins of Dixon, IL]

“Some of our members were outraged when, initially, the charge against the individual who assaulted Pam was aggravated battery as opposed to attempted murder. They were very concerned that he was bailed out,” said Anne Irving, public policy director for AFSCME. “What we’re focused on is prevention. Most people don’t think about what the penalties could be before they commit assault.”

The other bill [Senator] Bivins proposed, SB 3105, would require law enforcement agencies to accompany child protection investigators to home visits upon request of the investigator.

But even if legislative solutions do not bear fruit, efforts are being made at the agency level to prevent further attacks.

According to AFSCME spokesman Anders Lindall, the union requested an emergency meeting with DCFS management immediately following the September incident. There, the union’s standing committee proposed recommendations to increase the safety of its members.

One that DCFS seemed receptive to, according to Lindall, was AFSCME’s request for more worker training on identifying threats and de-escalating potentially dangerous situations.

Irving said the union was pleased with DCFS’s openness to such changes, but has been dismayed as the agency in its view has not shown “as much urgency as we would have liked to have seen on this very urgent issue.” She said a policy was supposed to be in place by February, but the union has just received a broad draft on potential training.

Repeated attempts to contact DCFS for this story have gone unanswered.

Cuts to social services and child welfare programs have repercussions down the line. Illinois’s governor has decided to ignore this reality–and that, paradoxically, makes the role of AFSCME Council 31 in protecting both its workers and the children and families it serves even more critical.

• West Virginia’s teachers—all of them—went out on strike Friday and are anticipated to continue today.

They’re the 48^th-lowest-paid in the U.S., and this has led, not surprisingly, to a severe teacher shortage.

Lead-up to the strike:

It began on Thursday, a day after West Virginia Governor Jim Justice, a Republican, signed legislation providing teachers, school service personnel, and state police with a 2 percent pay increase starting in July and scheduling 1 percent pay hikes for teachers in 2020 and 2021. The strike is poised to extend into Monday. [DSO: the strike continues today.]

Teachers’ unions say the raises won’t cover cost-of-living increases, and the bill doesn’t address other concerns related to public employee insurance programs, health care costs, and payroll tax deduction options.

Christine Campbell, president of the American Federation of Teachers-West Virginia, told CNN that’s a reduction from an earlier version of the bill — which would have instead added a total 5 percent increase in wages. She also said teachers in surrounding states make $5,000 to $20,000 more than West Virginia teachers. In 2016, the average salary for West Virginia teachers ranked 48^th in the country, according to the National Education Association, ahead of only Oklahoma, Mississippi, and South Dakota.

It’s illegal for teachers to strike in West Virginia, but they’ve gone out anyway—after all, when the state is experiencing a shortage of 727 at mid-year, what can the governor do? Fire them all and close down West Virginia schools for the rest of the year? How would that sit with parents and communities, who are showing solidarity with the teachers?

The basic stats: West Virginia’s 680 public schools employ 19,488 classroom teachers and have enrolled 277,137 students.

More from The Guardian:

–After paying for health insurance, many teachers make less than $15 an hour
–This is the first such action since 1990 (so, 28 years)
–Starting salary = $31,000

State Senate Majority Leader, Republican Ryan Ferns, is not feeling supportive:

“The teachers and their unions are threatening to strike and are making a threat to lock schools down and leave students in the cold,” Ferns told the Wheeling News-Register last Friday. “As a Legislature, we are not willing to respond to that.”

The comment outraged many of Wheeling’s teachers.

“I have taught girls that were pregnant that were raped by their fathers,” said Lindsay Armmirante. “We have paid electric bills, we have paid water bills, we have taken kids shopping for clothes. There is nothing that we don’t do for our kids here if they need. So to insult us that we don’t care about our kids its way over the line”.

Leaving students in the cold? Hmm … teachers and communities have already banded together to ensure children who receive their hot meal at school are fed, and some teachers are paying out of their pockets to ensure their students don’t go hungry during the strike.

• More on the West Virginia teachers’ strike from Peter Greene:

[The state’s only billionaire, Governor Jim] Justice was reportedly offering just a 1% raise for each of the next few years. That wouldn’t be enough of a raise to offset inflation, but it’s even less of a raise when it’s coupled with increased health insurance costs. West Virginia teachers were facing a pay cut, after going without a raise for a decade. Democrats were not much more help, offering to try to stump for a 3% raise.

“State officials have also invoked the children, but WV teachers are way ahead of them– one school that regularly makes food available for students to take home over the weekend provided an extra supply on Wednesday, and other schools are working with churches and local charities to make sure children’s basic needs are still taken care of.

The teachers do reportedly have strong support from their communities, but it remains to see how things will turn out as the underpaid, under-respected teachers of West Virginia face off against the state’s richest citizen. But there’s no question they can use some support from the rest of us.”

• DSO’s conclusion:

Janus v. AFSCME is a sort of quasi-referendum – initiated by a single child support worker in a single state, set to be decided by a single newly-appointed Supreme Court justice – on the purpose and future of unions in the U.S.

What good are they, some are asking, in an age of hyper-individualism, global capital movement, neo-liberalism, offshoring, outsourcing, and automation (that’s quite a list, but we’ve probably forgotten something)? Do they serve any purpose in a world of capital in search of ever-cheaper production sites?

• A labor and environmental historian whom we read regularly, Erik Loomis of the University of Rhode Island, posed the following question yesterday in a post, quoting from a recent article by Sarah Jaffe: “What is the Working Class?”
  Our notion of the “working class” generally speaking has become outmoded: the working class is not only factory/production workers, who are remembered (in many instances, wrongly) to have been exclusively white and male,  needs to be vastly expanded to service providers and even to “intellect workers” – people with PhDs such as adjunct faculty now earning about what home healthcare workers (the subject of Harris v. Quinn) make, and IT workers in Silicon Valley, NYC, Boston, Philly, DC, and Chicago who have no union anywhere to represent them in any negotiation with their employers.

We think the answer to Loomis’s question is straightforward: If you have to work to live, you’re working class. If you don’t have to work to live, you’re not. Clearly there is a significant grey area as one nears the upper limits of earnings (say, the top 10%, the “mandarin class”), but ours is a nation of people who work for a living.

You can be making $50,000 or $80,000 – or $200,000 – a year, and still, a natural disaster like a flood or fire or a major medical emergency can destroy your security in the blink of an eye and throw you and your family into precarity. Or you could get downsized, or your job could get outsourced – the latter has happened to plenty of newly-minted lawyers, whose one-time entry-level jobs go to India and document scanners.

The old lines are shifting, but workers – whether they work with their hands or their brains or a combination of the two – are workers are workers. So it has ever been, and so it will be for at least the foreseeable future.

Solidarity across racial lines, across gender lines, across regional lines and the urban-rural divide, across age lines … we’re all workers, we’re all in this together, and a union makes us strong in our fight for dignity, for respect, for a good wage, for health care, for education, for worker safety, for working conditions … the whole nine yards.

• The great labor song, written ca. 1915 by Ralph Chapin, still holds true.

And a few updated verses to highlight the above:

Women & Unions:
We’re the women of the union and we sure know how to fight
We’ll fight for women’s issues and we’ll fight for women’s rights
A woman’s work is never done from morning until night
Women make the union strong!

The races, united and equal:
When racism in all of us is finally out and gone
Then the union movement will be twice as powerful and strong
for equality for everyone will move the cause along
for the union makes us strong.

And:
They divide us by our color; they divide us by our tongue
They divide us men and women; they divide us old and young
But they’ll tremble at our voices, when they hear these verses sung
For the Union makes us strong!

Ringing out this post –our first of what will probably be several, perhaps many—on the state of labor in the wake of Janus, here’s our favorite new verse—it’s particularly apt today of all days:

They say our day is over; they say our time is through
They say you need no union if your collar isn’t blue
Well that is just another lie the boss is telling you
For the Union makes us strong!

Here’s Pete Seeger in a timeless rendition.

And here’s Great Big Sea singing “The Chemical Workers’ Song.”

Both are accompanied by powerful visuals.

** UPDATED: SCOTUSblog has the latest  in light of today’s oral arguments, so we’ll just excerpt the relevant paragraphs and leave the original links:

This morning the court hears oral argument in one of the term’s major cases, Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the justices will consider whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment. Amy Howe previewed Janus for this blog. Kristina Hurley and Michael Iadevaia preview the case at Cornell Law School’s Legal Information Institute. Counting to 5 (podcast) offers another advance look at the case. At Reuters, Robert Iafolla and Lawrence Hurley report that “[t]aking away mandatory agency fees could have profound implications for public-sector union coffers.” For The Wall Street Journal, Jess Bravin reports that although “[a]ttitudes about the value of public-sector unions underlie the case,” “[t]he specific legal question before the court … is more abstract.” Additional coverage comes from Nina Totenberg at NPR, Ariane de Vogue at CNN, and Steven Mazie at The Economist’s Espresso blog. Andrew Hamma and Caitlin Emma at Politico also look at Janus, as do Mary Bottari at In These Times and Rachel Cohen at The Intercept. For The New York Times, Noam Scheiber and Kenneth Vogel report that “[t]he case illustrates the cohesiveness with which conservative philanthropists have taken on the unions in recent decades.” Another look at the donors behind Janus comes from Ed Pilkington at The Guardian.

The editorial board of The Wall Street Journal maintains that a ruling for Mark Janus “wouldn’t be a death blow to government unions, though they might have to prioritize resources and reduce political spending.” At The Nation, David Cole and Amanda Shanor argue that “[t]he First Amendment protects the right to speech, but not the right to get something for nothing.” Additional commentary comes from David Rivkin and Andrew Grossman in an op-ed for The Wall Street Journal, George Will in an op-ed for The Washington Post, William Gould in an op-ed for The Mercury News, Cory Booker in an op-ed for HuffPost, Kim Glas in an op-ed at The Hill, and Xavier Becerra in an op-ed for the San Diego Union-Tribune, Sean McElwee and Mark Joseph Stern at Slate, and Kenneth Jost at Jost on Justice.