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Will the Supreme Court Break or Remake the Labor Movement?

Photo by David | CC BY 2.0

The invasion was a long time coming, but it’s finally arrived. Many public sector unions will be smashed in the Supreme Court’s upcoming decision of “Janus vs. AFSCME.” Many labor leaders are privately panicked: the machinery is in motion and unprepared unions will get crunched in the gears.

By agreeing to decide Janus, the judges placed themselves among a long line of courts that sought to radically change labor relations in the United States. With each major decision the court either cemented new legal rights for unions or took them away. In recent years the court ate away at the edges of union power, but with Janus the conservative court looks to stab at the heart.

Janus is an attack on the last bastion of concentrated union power: 34 percent of public employees work for unionized workplaces (as opposed to only 6 percent of the private sector workforce). Not since corporate-champion Ronald Reagan made America “great again” have unions faced such an assault; and most are painfully unprepared.

Some unions are having a fear-based reaction to Janus, choosing flight over fight; they believe that existing in a post-Janus world won’t be possible for them, as bargaining or enforcing union contracts will face additional, seemingly insurmountable barriers. Moving away from collective bargaining agreements, they seek to transition into a “21st century union,” the details of which look more like a lobby group and less like a union.

Those who buy into this most pessimistic conclusion will lead their unions into the jaws of the employers, while survivors will be forced to copy the strategies of those who’ve thrived in “right to work” states by fighting for and defending strong contracts.

The history of the labor movement is organizing as a power independent of external threats, where sudden anti-union legal changes were incapable of crippling a union. Historian James Patterson wrote about the effects of shifting labor laws on unions in his book ‘Grand Expectations’, and concluded that “where unions were strong they usually managed all right” against anti-union legislation.

So what makes a union strong?

A Brief History of Union Power

When U.S. capitalism was in its post-civil war infancy, the wealthy used repression and terror to crush the ascendancy of newly-freed slaves and newly-organized labor unions. While the KKK was terrorizing black communities, massacre after massacre was inflicted upon workers organizing unions. Sometimes it was one and the same: the KKK targeted black workers who tried to form unions, since white supremacists hate any organization that empower people of color.

The government and vigilantes used brute force and political repression until the 1930’s, when a strike wave suddenly shook U.S. capitalism to its core. Thoroughly divided on how to deal with the worker uprising that sprang up before, during, and after World War II, a section of the establishment, led by F.D.R, sought a truce with the labor movement called the New Deal, which included the National Labor Relations Act of 1935 that recognized and expanded union power (while also channeling militant energy into a set of procedures now called “the grievance process”).

Immediately after World War II the biggest strike wave in U.S. history broke out, where millions of workers went on strike for wages, work conditions, union recognition and full employment.

The raw power that unions wielded provoked a quick backlash: when the strike wave waned in 1947 Congress passed the Taft-Hartley act: the counter-revolution that followed the worker uprising. Taft-Hartley amended the Labor Relations Act to weaken unions, making effective organizing strategies illegal while creating the concept of “right to work,” which first emerged from the racist, segregationist south to weaken unions and disempower African Americans.

Essentially, “right to work” laws enabled employees to opt out of contributing to the cost of maintaining a union once it was voted in by the workforce, while nevertheless all workers would enjoy the benefits of collective bargaining. State governments in the south adopted right to work laws, which have since percolated around the country, where now 28 states have adopted different versions of this basic concept that has been upheld by the Supreme Court, about to be expanded with Janus.

The Workplace Stabilized

After Taft-Hartley was passed and reinforced by the Supreme Court, most labor leaders fell into line, content enough with their growing membership and workplace power. The law attempted to cement the balance of power between union and employer into a decades-long “social contract,” further amended by President Johnson’s creation of Medicare and passage and expansion of new Civil Rights laws.

The new social peace was rooted in the combined strength of the labor and civil rights movements that interacted in various ways, as outlined in Manning Marable’s “Race, Reform, and Rebellion.” Many unions mobilized for MLK’s famous rally in Washington, D.C. that demanded “jobs and freedom,” while Jimmy Hoffa’s Teamsters invested heavily in southern civil rights organizing such as the march on Selma.

With labor’s social power enshrined in new legal protections, unions fancied themselves secure and became internally focused on administering the organization’s bureaucracy. (It’s hard to imagine that modern unions would invest in the Black Lives Matter movement to the extent their predecessors invested in civil rights.)

But this union security is being smashed by Janus, because when it comes to labor relations the law is always subject to change in response to the ever-shifting balance of power between employers and employees. This fluctuating dynamic is constantly being measured by the ever-flexible Supreme Court, which amends the law in response to who’s winning in the workplace and broader community.

One example occurred in the mid-1970’s, when the Supreme Court responded to the growing public-sector unrest, led by teachers and others striking for higher wages and union recognition. The unions wanted similar rights granted to private sector unions, and finally bent the Supreme Court to its will with the Court’s decision “Abood vs. Detroit.”

In relenting to the union’s demands, the Supreme Court acknowledged in their decision that “social peace” was a main consideration. It’s the union victory of “Abood vs. Detroit” that faces overturning if “Janus vs. AFSCME” is decided against labor (the decision is expected sometime in spring). A big step forward in the history of the labor movement with Abood will have been deleted with Janus.

Shifting Equilibrium

Once labor laws between labor and capital are codified, it’s hard to budge, since powerful interests have their legal status fortified against change through the courts, attorneys, allies, political-organizing machines, “boots on the ground” plus popular opinion.

But as the years passed the rich became astronomically wealthy, and thus less willing to accept the status quo that sanctioned strong unions which threatened corporate profits. The establishment decided to smash the status quo with their class warrior Ronald Reagan.

Reagan reasserted the power of the corporations by crushing union power. Reagan used the military to destroy the union of air traffic controllers (PATCO). By using state power to kill a powerful union, Reagan made union busting state policy, which trickled down instantly to the corporations that copied the tactic, assured that federal labor law would be ignored if corporations decided to break labor laws while breaking strikes.

The attack on unions was the beginning of a decades-long offensive against the working class that continues to this day, and escalated by Trump: public education, healthcare, housing, welfare and other social services were slashed in order to lower taxes for the rich while maintaining an ever-growing, completely unnecessary mega-military. The lower wages that a smashed labor movement produced allowed for higher corporate profits, allowing for more money to flow into the political machine to repeat and compound the cycle.

The New Equilibrium

Reaganism successfully smashed most of the private sector union movement, to the point where only 6 percent of private sector workers are in unions today. Consequently, the economic and political balance of power has shifted to the right, allowing the wealthy a freer hand to implement pro-corporate reforms from state to state, pushing the labor market further in favor of the employers.

The Democrats and Republicans adjusted to the new power dynamic by moving further to the right, to the point where Obama’s economic policies are more conservative than Richard Nixon’s, and virtually indistinguishable from Reagan’s. The inequality in society enabled the super wealthy to increase the power of their politics at the growing expense of the political power of labor: more and more did Democrats ignore unions at the behest of Wall Street billionaires who’ve taken over as key funders of the Democrats.

The new equilibrium is still being settled as the corporations use their growing influence to reshape labor relations. They’re powerful but not all-powerful, and their hubris may get the better of them. Corporate power still meets substantial resistance in the last organized bastion of concentrated union power, the public sector, which survived the Reagan era onslaught and in many areas continued to grow.

Teacher unions mushroomed and city, county, and state workers organized into unions around the country, from bus drivers, social workers, road repair, water and waste management and public parks. Today 34 percent of public sector workers are organized into unions, an intolerably high number for an establishment led by billionaires that seek to profit from privatizing public resources.

With union density comes political power. The neoliberal project — essentially policies that give more power and profits to corporations — was endlessly stymied by public sector unions in state after state. When corporations wanted to defund city and state governments, unions fought back. The corporations seek to cut social services; the unions fight to expand them. Corporations fight for lower corporate taxes and the unions fight to increase them.

The unions lost more political battles than they won, but they won enough to enrage the right wing to the point of radicalism: a hatred of unions is a “point of unity” for the far-right. The struggle that radicalized the right also pushed labor to the left: teacher unions responded to right-wing attacks on public education by adopting more militant tactics, modeling themselves after the Chicago Teaches Union (CTU), that has been in a life or death struggle with the Democratic mayor of Chicago, former Obama Chief of Staff Rahm Emanuel. The CTU’s organizing contains vital lessons for the post-Janus labor movement, some can be found in “How to Jump Start Your Union.”

No Shortcuts to Surviving Janus

Quick gimmicks and fancy social media won’t save unions from Janus. When it comes to real union strength labor expert Jane McAlevey is required reading, especially her most recent book, “No Shortcuts: organizing for power in the gilded age.” McAlevey is correct that the labor movement’s terminal decline is due, in large part, to ignoring “deep organizing” in favor of the easier “shallow mobilizing” of gimmicky public relations campaigns.

Unions focused on making deals with the employers instead of fighting the employers over workplace issues, and thus the deals got worse as the organizing deteriorated: instead of striking for higher wages unions made concessionary deals. Because union leaders refused to fight, members believed their union to be weak, reinforcing the problem. Union strength doesn’t come from well-spoken negotiators or lobbyists but from the collective action of the membership, activated around issues they’re passionate about. Strong unions will survive Janus and the weak will be exposed, forced to change quickly or forced instead into history’s dustbin.

The only path forward for the labor movement is following the lead of militant unions like the Chicago Teachers or National Nurses United. Fancy alternatives that don’t result in better contracts must be ignored. For unions to look towards the future they must first root themselves in the past, by re-focusing on educating, empowering, and engaging their members. A passive membership smells like blood to the sharks circling unions bloodied by Janus.

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Shamus Cooke is a member of the Portland branch of Democratic Socialists of America. He can be reached at shamuscooke@gmail.com

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