‘Free speech’ suit could unwittingly help unionize nonprofits

In April, two NYC Legal Aid Society lawyers filed suit claiming their right to not pay union agency fees. Although they work for a nonprofit, they argue that since their employer is funded by contracts with the city and state of New York, they have the free-speech rights outlined by the Supreme Court’s landmark 2018 Janus decision. If they prevail, they will get far more than they expect. For that, we should wish them well. 

The suit by Arnold Levine and Allen Popper is clearly a test case brought by the same lawyer, Jeffrey Schwab, who argued the Janus v. American Federation of State, County, and Municipal Employees, Council 31 case. This new suit is intended to extend the Janus ruling to make all private sector shops so-called “open shops” and bleed private-sector unions of dues and agency-fee revenue.  

Much of the media coverage has been about the First Amendment argument, which stems from a recent resolution passed by members of the Association of Legal Aid Attorneys, UAW Local 2325 that, among other things, called for a ceasefire in Gaza and “an end to Israeli apartheid and the occupation and blockade of Palestinian land, sea, and air by Israeli military forces.”

But their claim confuses criticism of Israel with antisemitism. The resolution explicitly denounces “antisemitic threats” to its own members. 

As with Janus, the First Amendment claim is a flimsy excuse to attack the workers’ movement by misleading the public into thinking it is about the right to free speech. They do, however, make the fair point that their nonprofit employer is essentially part of government because it gets nearly all its funding from tax revenue. As I have argued on these pages, nonprofits are essentially a vehicle for privatizing public services.  

Their “victory” could backfire and actually serve to strengthen nonprofit and public-sector unions. A court victory will make all workers doing outsourced public-sector work eligible for the same benefits as public-sector workers under public labor and employment law. 

Nonprofit and public-sector unions can immediately take advantage of the ruling right away and organize many more nonprofit workers. All over the country, public-sector unions could begin filing “misclassification” and “unit modification” petitions with the public labor board to make nonprofit workers doing privatized work members of their union. These petitions can argue that since non-profit workers are now covered by the Janus ruling they are actually public-sector workers and should be able to organize their own bargaining unit or be brought into existing units.  

As a result, nonprofit and public-sector unionization is likely to grow substantially and create a stronger foundation in low union-density states to further organize workers in and outside the public sector. And as nonprofit unions raise wages, improve benefits and end notorious overwork in the sector, it will undermine the labor cost-savings argument for privatization. 

Schwab, the right-wing Liberty Justice Center’s lawyer, wants to expand Janus to the private sector beginning by suppressing the growing wave of nonprofit unionization and strikes. One example is Legal Services Staff Association UAW Local 2320’s victorious 13-week strike at Mobilization For Justice despite the bosses hiring scab labor and retaliation after the strike ended according to a recent email interview with a key organizer. As I wrote about previously, NYC nonprofits employ twice as many workers doing publicly funded work than the governments that fund them. 

Despite the bosses’ efforts, Janus didn’t bankrupt our unions. While membership dropped 1.5 percent between 2018 and 2023 according to the Bureau of Labor Statistics, union net assets actually rose 127 percent according to a recent Radish Research report.  

Automatic dues deductions made many unions disconnected from the members, ignore organizing in favor of lobbying and too willing to collaborate with the boss. After the ruling many rank and file members and some leadership used it to re-engage with and organize members, escalate tactics, develop new strategies and begin fighting. That not only made it easy to get members to stay in the union and pay dues but also brought in more new members who wanted to be a part of the new fight.  

We still have a long way to go to transform the workers movement. Levine and Popper v. Association of Legal Aid Attorneys, UAW Local 2325 et al. may be just the next shot of fighting spirit we need. The best answer to the boss’s attack is to organize and fight forward.  

Robert Ovetz is author of the forthcoming book “Rebels for the System” (Haymarket Press) about nonprofits, capitalism and the labor movement. He is also the author and editor of four books including “We the Elites: Why the US Constitution Serves the Few.” 

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