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West Virginia Teachers Show that Janus Case before Supreme Court Will Not Stop Employees from Organizing

March 11, 2018

Two news stories about unions dominated the news last week: the Janus case before the Supreme Court and the state-wide strike by West Virginia teachers that closed every school in the state. Mr. Janus, a mental health employee who is a non-union member is protesting the requirement that he pay agency shop fees. A NYTimes article summarized the Janus case as follows:

Mr. Janus’s lawyers said the case is about freedom of speech and association. The activities of public unions are akin to lobbying, they said, and so are by their nature political. Forcing unwilling workers to pay for such activities violates the First Amendment, they added, by compelling them to support messages with which they disagree.

“We argue that you shouldn’t have to check your First Amendment rights at the door when you take a government job,” said Jacob H. Huebert, a lawyer with Liberty Justice Center, a conservative litigation group.

“I was forced to pay these fees,” Mr. Janus said. “Nobody asked me.”

He added that he disagrees with stances taken by the union. “They use that money in these agency fees to support their different causes and views,” he said.

Conservatives and businesspersons are fully supportive of this case and they and their front organizations are underwriting Mr. Janus’ efforts. Unions, on the other hand, are opposed because the dues provide them with the funds they need to represent employees in grievances and to support their “causes and views”, many of which are, they argue, the ultimate benefit of all employees. Too, the unions must represent all employees even if they are not dues paying members, which supports their argument that every employee should pay something to them because they all benefit directly or indirectly.

But West Virginia teachers are showing the nation that even if unions do not exist, in this day and age of organic organizing via social media, industry-wide strikes are still possible. As the West Virginia teachers demonstrated with their five-day strike last week, facilitated by (but not led by) the union, even if a large amount of money is available to public employee unions and state laws are stacked against them, employees who band together can make a difference. And the strike has proven what some labor experts theorized: if unions are eviscerated employees will still band together but they might do so in a more militant and anarchic way…. and when they do it creates a difficult situation for management, who, in the case of public unions, is often elected officials.

“Unions have tended throughout most of their histories to be forces that seek stability, not unrest,” said Joseph A. McCartin, a labor historian at Georgetown University. “When they are weakened, we’re more likely to see the re-emergence of instability and militancy, and the kind of model that we’re seeing happen in West Virginia.”

That model, driven by grass-roots anger, can flummox politicians. Mitch Carmichael, the Republican president of the West Virginia Senate, opposes collective bargaining for public employees, but he acknowledged that the decentralized aspects of the strike made it difficult to reach a settlement that would satisfy the teachers.

“You’re not negotiating with a particular, a unique set of participants,” Mr. Carmichael said. “There’s just this organic sort of — I don’t know what to call it. More like an uprising.”

I suspect that “uprisings” of teachers will continue across the nation as intransigent politicians refuse to provide adequate funding for schools and the battles over raising taxes to pay for settlements will be politically complicated. I foresee a situation where teachers’ roles will be to educate the private sector employees about the benefits of organizing… and if they are successful in doing so the baristas, wait staff, and employees of national retailers will have a template to follow that might enable them to get the wages, benefits, and working conditions they deserve.

The politicians who are promoting the principles behind Janus should be careful: the may be creating a monster they and their donors will be unable to squash. Because when the day comes that employees see that excessive profiteering and shareholder and CEO greed are diminishing their earning capacity the political tide could turn.

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