There seems to be little question that state employee Mark Janus will win his upcoming case before the U.S. Supreme Court and deal a severe blow to public-sector unions nationwide
The bigger question is, what are the unions going to do about it?
Janus is a child-support specialist with the Illinois Department of Healthcare and Family Services in Springfield. He's the named plaintiff in a lawsuit against the American Federation of State, County and Municipal Employees (AFSCME) Council 31 in which his side argues that it violates his rights to compel him, as a condition of his employment, to give part of his paycheck to a union whose mission he doesn't support.
To clarify: The law has long given unionized workers the right to opt out of paying dues that support political candidates. But it does allow the union to charge them a "fair-share" fee for the costs of negotiating contracts and advocating for workers in disputes with management.
Twenty-eight states, not including Illinois, now have what I refer to as "right-to-freeload" laws that allow employees at unionized workplaces to refuse to contribute anything to the union while still enjoying nearly all the negotiated benefits of membership — the protections, the pay raises, the insurance packages and so on.
Most news organizations refer to such laws with the equally tendentious conservative term, "right-to-work." But whatever nomenclature you prefer and whatever reason workers have for not contributing — ideological conviction or thrift — those who accept the benefits of organized labor but don't chip in to earn and maintain them are parasites.
And court watchers are nearly unanimous in predicting that the would-be parasites will win when the justices decide Janus v. AFSCME later this term. The court deadlocked 4-4 on an almost identical case after Justice Antonin Scalia died unexpectedly in early 2016, and Neil Gorsuch, Scalia's replacement, appears nearly a lock to provide the decisive fifth vote in favor of Janus.
If he does, the right to freeload will extend to public employees nationwide, a development that inevitably will spread to private-sector unions.
"I've already started planning out a law-review article titled 'After Janus,' " said Chicago-Kent College of Law professor Martin Malin, who has written extensively on legal issues related to public-sector employment.
How will unions persuade workers to pony up voluntarily to receive benefits they can otherwise get at no charge? How will they make the case that dues or "fair-share" fees that often exceed $500 a year are a good investment?
There are little carrots. Malin mentioned union-branded credit and insurance programs available only to members.
And there are little sticks. Malin noted laws in Nebraska and Florida that permit unions to refuse to represent nonmembers in grievance proceedings, or else to charge them for the service.
But the big stick — cutting loose the freeloaders altogether and letting them negotiate their own deals with the bosses — probably won't come out.
The idea has a certain appeal. Let Mark Janus and other objectors receive non-union wages and non-union benefits, which tend to be lower and skimpier, and let them hire their own lawyers when they feel their bosses have treated them unfairly.
"'Members-only' unions were common during the decade that followed the passage of the Wagner Act," said labor historian Charles Morris, referring to the National Labor Relations Act of 1935 that established the right of collective bargaining. "The first steel and auto unions were based on the idea that contract benefits only applied to those who'd joined the union."
But common practice and labor law evolved into a majority-rule, all-in system, one that made it harder initially to get unions into workplaces but that strengthened unions once they formed.
Right-to-freeload laws that undercut union solidarity have been spreading quickly in recent years. Proponents argue that union activity is inherently political and that forcing people to pay for it violates their rights of free expression and association.
Morris is among those who contend that a revival of "members-only" unions, ones that don't require majority votes to form and exclude holdouts from contract benefits, could revive the flagging labor movement.
AFSCME, however, is having none of it: "Negotiating for only a small group of members is unworkable for any number of reasons," said Anders Lindall, spokesman for the Illinois council, explaining to me why the union will not advocate for the legal changes necessary to punish freeloaders.
"It would allow the employer to drive a race to the bottom, it would undermine morale by pitting employees against one another and it would violate the core union belief that a rising tide lifts all boats," Lindall said. "We know that working people speak with the strongest voice when they're united — and the wealthy elite and the shadowy groups behind Janus know that too."
Malin at Chicago-Kent said the logistics of having thickets of different time-off policies, pay schedules, seniority rights and benefits packages for different workers with similar jobs would be daunting for employers as well as employees. "I don't see how it could possibly work," he said.
What the unions are going to have to do in the post-Janus world is make the case that membership is a good investment. A study of the impact of right-to-freeload laws in the Midwest released in April by researchers at the Illinois Economic Policy Institute and the University of Illinois at Urbana-Champaign, for example, found that the introduction of right-to-freeload laws in Indiana, Michigan and Wisconsin has lowered average wages in those states by 2.6 percent and the unionization rate by 2.1 percent.
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At the same time, unions need to make the case that when the law no longer demands that everyone chip in to share in the returns of that good investment, fairness still does.
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