What Janus means North of the border

By David Bush

On June 27 the United States Supreme Court handed down its ruling on the Janus v. AFSCME case. In a 5–4 decision the court ruled that public sector union fees to non-members is a violation of First Amendment rights. In effect the ruling obliterated closed shop unions in the public sector across the United States, ushering in national right-to-work.

The Janus decision had been a long time coming. Anti-union forces had been working hard over the past two decades to attack public sector union rights at the state level. Right-to-work provisions were implemented at the state level in Indiana, Michigan, Wisconsin, West Virginia, Kentucky and Missouri over the last five years. This was, until the Janus decision, the largest wave of expansion of right-to-work since 1947. The attack at the state level emboldened the rightwing to attack right-to-work at the national level. Anti-union forces had managed to get a case to the Supreme Court in 2016, the Friedrichs v. California Teachers Association, which would have achieved what the Janus decision did in 2018 if Justice Scalia had not died resulting in 4 – 4 decision.

Right-to-work laws curbing closed union shops were first passed at the state level 1947 after the Taft-Hartley Bill was passed by Congress that same year. The Bill was a compilation of over 250 anti-union bills right-wing legislators had been trying to push through Congress in the 1940s. Taft-Hartley outlawed secondary pickets and boycotts, required union leaders to sign anti-communist affidavits,made it harder to go on strike, added a number of unfair labour practice violations for unions to the act and made it possible for individual states to ban union security clauses. Taft-Hartley was pushed by Southern Segregationists and big business lobbyists to curb the power of unions and stimey the burgeoning civil rights movement. Right-to-work laws for southern politicians were seen as part of the racist nexus of segregation which would keep wages for black workers lower and the working class divided.

The impacts of Janus

The impact of the Janus decision means right-to-work is the law of the land for public sector unions. Roughly seven million public sector workers will be directly impacted. Union membership and dues in the public sector will plummet. In most but not all states, unions will still be responsible for representing workers in the bargaining unit regardless if they are union members or not. The Janus case prevents ‘union security’ provisions in contracts that permit them to charge agency fees, “fair-share fees” or any other form of payment to individuals they are forced to represent.

Unions representing public sector worker in the United States will now have to grapple declining membership, an emboldened right-wing, and how they should orient to “free riders” in the workplace. Janus certainly does not spell the end of unions in the United States, but the attack on union rights is without question going to weaken the institutional capacity and power of the working class. Workers can and will organize under right-to-work, but there should be no illusions, this will make it much harder for workers to do so. It is sometimes forgotten that in prominent examples of workers organizing in right-to-work states such as the hospital workers in Las Vegas, made famous by Jane Mcalevey, those efforts were almost entirely funded by dues coming from non-right-to-work states. Fortunately, Labor Notes has put together a must read series of articles on how union activists can organize in the Janus era.  

The Janus effect in Canada

For international unions in Canada the Janus decision will have an obvious direct impact. Right-to-work will shrink the dues base of international unions with public sector members, meaning resources for campaigns or organizing will be squeezed for locals on both sides of the border. ATU, SEIU, USW, Teamsters, UFCW, UNITE HERE and LIUNA all to varying degrees have public sector memberships that will be directly impacted by the Janus decision. Right-wing groups, expecting a favourable Janus decision for themselves, have hit the ground running and are organizing on the ground campaigns to convince union members not sign-up with their unions. Unions in the United States will be focusing their time, energy and resources fighting off these attempts rather than organizing new members or running political campaigns.

The impacts of Janus north of the border goes beyond the material weakening of international unions. The attack on closed shop unions south of the border paves the road for a similar assault on union rights North of the border.

In 2012 Tim Hudak’s Progressive Conservative Party of Ontario outlined a plan that would attack union security. While Hudak eventually backed down on his proposition to implement right-to-work, there was substantial support inside the Progressive Conservative Party to follow the lead of states like Wisconsin and Michigan in gutting the rights and ultimately power of unions. Unions in Canada at the time mounted an effective campaign against the proposed changes that Hudak was never able to overcome.

The changing landscape in the United States and the victory of Doug Ford in Ontario means the question of union rights and right-to-work will resurface. Ford and the PCs have been careful not to even hint at tampering with the structures of collective bargaining and union representation. But as the new labour law reality in the United States sets in, Ford may turn to attacking fundamental union rights in law as a way of resolving the pending “fiscal crisis” that the province will assuredly face in several years time. This could take the form of attacking the Rand Formula or instituting right-to-work like laws. Some on the left may feel confident that the courts will prevent such drastic moves, but relying on the courts is not a guaranteed path to victory or way to build long-term workers’ power.

Janus is an earthquake in labour relations in the United States. It will take some time for the dust to settle and impacts to fully register. But there will be aftershocks in Canada and it is only a matter of time before politicians looking to attack the power of public sector unions look to bring the anti-union laws and ideology in the United States.