In a major deci­sion that will impact labor for decades, the U.S. Supreme Court has just declared that all pub­lic-sec­tor work­ers who are rep­re­sent­ed by a union have a Con­sti­tu­tion­al right to pay the union noth­ing for the representation.

The Court over­turned its land­mark 1977 deci­sion in Abood v. Detroit Board of Edu­ca­tion, which per­mit­ted pub­lic-sec­tor unions to charge fair-share fees that cov­ered the costs of pro­vid­ing col­lec­tive bar­gain­ing and con­tract admin­is­tra­tion to non-mem­bers that were rep­re­sent­ed by the union. Today, in Janus v. AFSCME, the Supreme Court has held that the First Amend­ment pro­hibits pub­lic employ­ee unions from charg­ing a manda­to­ry fee for the costs of rep­re­sen­ta­tion. There­fore, going for­ward, all pub­lic-sec­tor employ­ees will be under so-called ​“right to work,” the union-bust­ing legal frame­work that denies unions the abil­i­ty to charge work­ers dues. In some ways, the deci­sion is worse than expect­ed. The rul­ing also makes union mem­ber­ship opt-in rather than opt-out. This will sig­nif­i­cant­ly increase the costs and bur­dens on labor.

This deci­sion will direct­ly and indi­rect­ly impact how unions are struc­tured, how they engage with their mem­bers and objec­tors, how they orga­nize and edu­cate and how they are fund­ed. But this deci­sion will not destroy, defund or dec­i­mate labor.

First off, the Janus deci­sion will only direct­ly impact less than half of the labor move­ment. This is because the rul­ing only applies to pub­lic-sec­tor work­ers: fed­er­al, state and local gov­ern­ment employ­ees. How­ev­er, fed­er­al employ­ees (includ­ing postal employ­ees) have long been under so-called ​“right to work,” so Janus will have min­i­mal direct impact on them. Fur­ther­more, many state and local pub­lic-sec­tor work­ers are already in ​“right to work” states, so this rul­ing will have no effect on them. This is not to say that the whole labor move­ment will not be neg­a­tive­ly impact­ed by a decline in mem­ber­ship among pub­lic-sec­tor unions, but it is impor­tant to remem­ber that Janus will not place all union mem­bers under ​“right to work.”

It is dif­fi­cult to pre­dict what effect Janus will have on union mem­ber­ship over­all. There is a good chance there will be at least some decline in mem­ber­ship, thanks to the free-rid­er prob­lem: the like­li­hood of some work­ers who are not opposed to the union choos­ing to pay noth­ing sim­ply because they can get some­thing for noth­ing. How­ev­er, state-lev­el data on the decline of union mem­ber­ship fol­low­ing the pas­sage of state ​“right to work” laws is not nec­es­sar­i­ly a good pre­dic­tor of what will hap­pen after Janus, because most of the state laws are a mix­ture of anti-work­er laws that include ​“right to work.” For exam­ple, in Wis­con­sin, union mem­ber­ship declined 38 per­cent between 2010 (the year pri­or to the pas­sage of Act 10) and 2016. How­ev­er, Act 10 con­tained a host of oth­er pro­vi­sions, such as the elim­i­na­tion of col­lec­tive bar­gain­ing for pub­lic-sec­tor workers.

Fol­low­ing Janus, unions will now have to fight for every union mem­ber to ensure they choose to remain mem­bers and pay their dues. Right-wing groups of the sort that brought Janus, Friedrichs and oth­er anti-union cas­es, will mount a nation­wide cam­paign to get mem­bers to quit the union. Many labor unions that have not been strong in engag­ing their mem­ber­ship will have to keep up a con­stant lev­el of con­tact and orga­ni­za­tion to main­tain their mem­ber­ships or risk los­ing big. They will have to make the case to mem­bers why they should stay with the union and pay dues, and they will have to make that case often.

Unions are con­sid­er­ing a num­ber of options for get­ting state laws changed, or chang­ing inter­nal pol­i­cy, to adjust to Janus. New York passed a law in antic­i­pa­tion of Janus, which oth­er states are con­sid­er­ing, that would allow unions to deny or charge for some ser­vices, such as griev­ance rep­re­sen­ta­tion. Some states are con­sid­er­ing laws that would require work­ers who are not mem­bers of the union to pay for rep­re­sen­ta­tion in griev­ance pro­ce­dures. This approach would have the ben­e­fit of dis­cour­ag­ing free-rid­er­ship by not pro­vid­ing the full ben­e­fits of mem­ber­ship to those work­ers who choose not to join. How­ev­er, it car­ries the dan­ger of turn­ing unions into pay-for-ser­vice orga­ni­za­tions that will find them­selves turn­ing away work­ers in their time of need.

Labor law pro­fes­sor Samuel Estre­ich­er has pro­posed an inter­est­ing approach that unions could take that would reduce the rate of pos­si­ble free-rid­ers, not require leg­is­la­tion, and not require unions to turn away non-pay­ing work­ers. Estre­ich­er argues that unions should require work­ers who choose not to pay their union dues to instead donate the mon­ey to a 501(c)(3) char­i­ty. Unions already per­mit reli­gious objec­tors to take this route, and Estre­ich­er sug­gests expand­ing the pro­gram to any objec­tors. Since this approach would require all work­ers to pay an amount equiv­a­lent to their dues — but would let them decide if the recip­i­ent was the union rep­re­sent­ing them or a char­i­ty — it would sep­a­rate the true objec­tors from the free-riders.

The allowance of fair-share fees, in both the pub­lic and pri­vate sec­tor, was in part intend­ed to pro­mote labor peace, and the impo­si­tion of ​“right to work” may lead to more strikes and labor unrest. The mas­sive teacher strikes this year in West Vir­ginia, Ken­tucky, Okla­homa, Ari­zona, Col­orado and North Car­oli­na have all tak­en place in ​“right to work” states, and this com­mon fact was like­ly no coin­ci­dence. Work­ers in ​“right to work” states tend to have low­er salaries and few­er ben­e­fits. Mean­while, unions are weak­er, pos­si­bly because they serve as a mod­er­at­ing force to avoid direct — and often ille­gal — con­fronta­tion. These effects from ​“right to work” can cre­ate an envi­ron­ment where work­ers’ frus­tra­tion grows, they have few options to bet­ter their sit­u­a­tions with­out direct action, and they orga­nize at a grass-roots lev­el. After Janus, with ​“right to work” becom­ing the new rule for all pub­lic-sec­tor work­ers, there may be a break from a long peri­od of U.S. his­to­ry when strikes have been rare.