Public-sector unions are already preparing for a potential exodus of members and a loss of revenue. Can they survive without charging mandatory fees?
From the abstract:
Agency fees are mandatory payments that certain employees are required to make to labor unions. In recent years, the Supreme Court has moved closer to declaring these fees an unconstitutional form of compelled speech and association and may soon invalidate them entirely. The Court – and the scholarship on agency fees – proceeds from the assumption that such fees are employees’ money that employees’ pay to a union. This article argues, however, that this is the wrong way to understand agency fees and for two sets of reasons. One, the Court treats agency fees as employees’ money because fees pass through employee paychecks on the way from employers to unions. But this is simply an accounting formalism required by labor law. Because employees have no choice but to pay the fees, the fact that the fees pass through paychecks is irrelevant for purposes of First Amendment analysis. Instead, under the First Amendment, agency fees are – and must be treated as – payments made directly by employers to unions. And payments made by employers to unions raise no compelled speech or association problems for employees. Two, irrespective of the accounting regime, the article shows why agency fees ought to be treated as union property rather than as the property of individual employees. Unionization, by allowing employees to negotiate collectively, produces a premium for employees covered by union contracts. Agency fees are a small fraction of this union premium. Because it is the union that produces the premium out of which agency fees are paid, and because individual employees would never earn the premium as individuals, the premium and the fees that come out of it should be treated – under the Court’s own cases – as the property of the union that secured them. The article thus provides two sets of arguments with the same fundamental implication: agency fees are not properly understood as payments made by employees to unions, and there is accordingly no compelled speech or association problem with agency fees.
Janus, Agency Fees and the First Amendment
Source: Benjamin Sachs, On Labor blog, October 5, 2017
…. Eighty years after the Wagner Act’s validation, the triumph of collective bargaining in mass production industries seems as ancient as Exodus, and Cox’s optimism as quaint as greeting card poetry. Whereas the industrial Midwest once throbbed with demands for industrial democracy, today its depleted cities continue to bleed jobs and its hinterlands struggle with rampant opioid addiction. Flint, once home to a mobilized working class capable of taming General Motors, is today a desperately impoverished city lacking in decent jobs, whose residents continue to suffer from the aftermath of lead poisoning. Whereas sit-down strikers were protected by Governor Frank Murphy in 1937, today’s Michigan is a “right-to-work” state presided over by Governor Rick Snyder, a venture capitalist whose efforts to wrest local control away from distressed communities led directly to Flint’s poisoning. Little remains of the industrial union movement born in 1937, as private-sector union membership rates today dip toward 6 percent.
Nor is there reason to suppose the Supreme Court will help matters as it did eighty years ago. Today’s Court instead seems bent on interring the last legal vestiges of the New Deal labor order. In the case of Janus v. AFSCME, which the Court will decide in the coming term, the right of public-sector unions to collect “agency fees” from the workers they represent is being challenged. Opponents argue that government workers’ unions are merely political vehicles, and therefore granting them the right to collect agency fees infringes on the rights of workers who might not share the politics of the union that represents them. The case threatens to overturn a forty-year-old precedent, Abood v. Detroit Board of Education (1977), which recognized the unions’ rights to collect such fees in the interest of orderly workplace governance wherever state law allowed the practice…..
The Supreme Court decided yesterday to hear Janus v. AFSCME. The Court seems poised to hold that agency-fee agreements for public sector workers are unconstitutional. Since the order, reports and commentaries have analyzed Janus‘s threat to public sector workers, and its stakes for U.S. organized labor.
The Chicago Tribune explains that the case began when Illinois’ Republican Governor Bruce Rauner, a former private equity executive, attempted to stop the state from dispensing agency fees to unions, clashing with the state’s Attorney General. The Governor eventually filed the suit that would become Janus, asking a federal court to rule that his actions were valid and that fair-share agreements are unconstitutional. When Gov. Rauner was dropped from the case, Mark Janus and other state employees took over as plaintiffs. The Tribune also has an editorial that supports the union’s argument only on the “narrow” point that “[s]omeone who benefits from a union’s contract negotiations should pay for collective bargaining activities, if not for the union’s political activities.” It notes that an AFSCME loss in Janus would lead to a decline in union membership, like the decline seen “in Wisconsin, with Gov. Scott Walker leading the charge.” ….
Janus and the Private Sector
Source: Benjamin Sachs, On Labor blog, September 29, 2017
Maddy’s excellent wrap-up of yesterday’s Janus news includes a clip from Slate’s piece “Solidarity’s End.” There, Mark Joseph Stern provides a very useful synopsis of agency fees law, but he also suggests that a Janus decision finding agency fees unconstitutional could easily be exported to the private sector. Here’s how he puts it:
One last point: Janus involves only public-sector unions, or unions composed of state employees. But there is no obvious reason why its logic should not apply to private-sector unions as well.
But of course there is a very obvious reason why the logic of a public-sector holding would not apply to private-sector unions: that logic is the state action doctrine, which limits constitutional restrictions to state actors….
A Primer on the Supreme Court Case That Teachers’ Unions Have Been Fearing
Source: Liana Loewus, Ed Week blog, September 28, 2017
Today, the U.S. Supreme Court officially agreed to review a case on public-employee union fees that could potentially deliver a harsh blow to the nation’s teachers’ unions. You may find yourself asking: Wait, haven’t we been through this? Wasn’t someone named Friedrichs involved? And why is this coming up again? All good questions. Let’s take a look at what’s at stake, and how we got here. ….
Janus v. American Federation of State, County, and Municipal Employees, Council 31
Source: SCOTUSblog, 2017
Issue: Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment…..
Judgment Day for Public Unions
Source: Matt Ford, The Atlantic, September 28, 2017
The U.S. Supreme Court has agreed to hear a case that could deal a serious blow to American organized labor.
Neil Gorsuch Has Web of Ties to Secretive Billionaire
Source: Charlie Savage, Julie Turkewitz, New York Times, March 14, 2017
….With the Senate Judiciary Committee set to take up Judge Gorsuch’s nomination next week, Democrats have based much of their criticism of him on the argument that his judicial and economic philosophy unduly favors corporations and the wealthy. But his relationship with Mr. Anschutz, 77, whose fortune is estimated by Forbes to be $12.6 billion, has received scant attention. The Federalist Society and the Heritage Foundation, which developed the list of potential Supreme Court nominees from which Mr. Trump selected Judge Gorsuch, receive funding from Mr. Anschutz. ….
Bradley Foundation Bankrolls Attacks on Unions
Source: Mary Bottari, Center for Media and Democracy, May 8, 2017
Documents examined by the Center for Media and Democracy (CMD) expose a national effort by the Milwaukee-based Lynde and Harry Bradley Foundation to defund and dismantle unions, the most significant force for higher wages and better working conditions in America. Publicly, the Bradley Foundation spins this agenda as “employee rights.” Behind the scenes, newly disclosed Bradley documents detail an aggressive political agenda….
Gorsuch speech at Trump hotel attracts protests
Source: Josh Gerstein, Politico, September 28, 2017
….Gorsuch spoke as part of a 50th anniversary celebration for the Fund for American Studies, a charitable group that sponsors scholarships and study programs. The organization’s goal, according to its website, is “to win over each new generation to the ideas of liberty, limited government and free markets.” The fund is supported by a wide array of foundations, most of them with a conservative or libertarian bent, including the Lynde and Harry Bradley Foundation and the Charles Koch Foundation…..
The Supreme Court’s Anti-Democratic Feedback Loop
Source: Scott Lemieux, The Atlantic, September 29, 2017
The GOP installs Supreme Court justices over the will of voters. The Supreme Court helps the GOP remain in power. Rinse, repeat.
Many Court watchers think it is a foregone conclusion that the Supreme Court will grant the cert petition in Janus v. AFSCME, and then overturn the forty-year old decision in Abood v. Detroit Board of Education. While I’m not willing to bet against that, it’s worth noting that to reach that result the Court would need to ignore a series of recent cases requiring plaintiffs to plead facts rather than conclusory assertions….
….In recent years, the Supreme Court has made it easier for defendants in lawsuits to file motions to dismiss. In two cases, Bell Atlantic Corp. v. Twombly, and Ashcroft v. Iqbal, the Court has stated that to survive a motion to dismiss “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” The Court has further explained that “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” When workers have sued their employers, lower courts have often relied on Twombly and Iqbal to dismiss the workers’ claims without allowing any discovery….
….When public employees have sued their employers, the Supreme Court has been quick to assert that it does not want to “constitutionalize the employee grievance.” Yet this seems to be exactly what Janus is asking the Court to do. Janus complains that he does not want to fund AFSCME’s actions as the bargaining agent for him and his fellow employees. But, undoubtedly the great bulk of any agency fees he objects to are spent on those very same employee grievances that the Court has said it does not want to “constitutionalize.” At a minimum, the Court should not allow conclusory pleadings in a bare-bones complaint to form the basis for a decision overturning long-settled law…..
….But with the introduction of Uber and other rideshare companies to the city—which can operate without the expensive, city-issued medallions—Aikins has seen his clientele plummet over the past three years, making it increasingly hard to keep up with his medallion loan payments.
Across the city, the number of taxi rides dropped from 2.29 million in January 2014 to 1.1 million in January 2017, according to a report released recently by Cab Drivers United, AFSCME Local 2500 (CDU). As a result, the average monthly income per medallion has fallen by $2,000 during the same time…..
….In addition to repaying loans on their medallions, taxi operators also have to pay thousands of dollars each year in city expenses, like the ground transportation tax and medallion license renewal fee—expenses that rideshare drivers are not subject to.
CDU says the number of rideshare vehicles in Chicago now exceeds 227,000, while 42 percent of the city’s taxis didn’t pick up a single passenger this March. The union stresses that the decline of the taxi industry is a loss for the broader public. Unlike most rideshare vehicles, taxis serve people without bank accounts by accepting cash, and they also have more stringent requirements on providing access to people with disabilities…..
One of the most immediate impacts of Neil Gorsuch’s appointment to the Supreme Court may be on a case that could have a major impact on public employee unions right here in New York.
This case, Janus v. AFSCME, deals with state laws that allow public employee unions to automatically withhold fees or dues from all represented employees’ paychecks, even those who are not members of the union. The plaintiff in the case, Mark Janus, is an employee of the state of Illinois. He is suing his union, the American Federation of State, County and Municipal Employees (AFSCME), because he believes the Illinois state law allowing AFSCME to deduct monies from his paycheck violates his First Amendment rights to freedom of speech and association. New York has a similar law on its books. Illinois and New York are two of 22 states that allow for arrangements under which all represented employees must make payments to a union as a condition of their employment, even if they affirmatively elect not to join the union….
The Right’s assault on public-sector workers is an assault on the public sector itself.
Within the next year, the Supreme Court is likely to rule on the latest existential threat to workers and their unions: Janus v. AFSCME. Like last year’s Friedrichs v. CTA—a bullet dodged with Justice Antonin Scalia’s unexpected death—the Janus case is a blatant attack on working people by right-wing, moneyed special interests who want to take away workers’ freedom to come together and negotiate for a better life.
For years, the Right has been hammering through state-level “right-to-work” laws in an effort to kill public sector unionism; it would see victory in the Janus case as the coup de grace. ….
…King’s strategic advice to the striking Memphis sanitation workers is still useful for workers seeking to improve their lives with direct action today:
– Once on strike, expand the struggle beyond the immediate company to its corporate allies and suppliers.
– Use boycotts and economic action to involve supporters.
– Transform the pain inflicted on strikers to pain inflicted on executives, board members, and investors.
– Be prepared to stay in the struggle one day longer with “dangerous unselfishness.”
– And perhaps most importantly, place the struggle in a larger context that challenges elected officials and government at every level to make America a better nation!
Source: José La Luz, New Labor Forum, Vol. 25 no. 3, September 2016
I strongly disagree with Brother Richman’s assertion that the inadequate resources devoted to external organizing are the result of a conscious choice—strategic or tactical—made by labor leaders because they have opted instead to dedicate all or most of their union’s resources toward “winning better pay, working conditions, and rights for existing union members.”
It is entirely possible that many of these leaders have not even considered these two seemingly opposing priorities in the face of a sustained and escalating attack by corporate interests and their political allies. Many may simply be maneuvering to defend their unions by helping to elect a “friend” to the White House who could work with them to usher in a program of modest labor reforms and provide some needed oxygen to their embattled institutions.
It should be noted that although most unions are not spending enough on organizing, a few—such as the Service Employees International Union (SEIU), American Federation of State, County, and Municipal Employees (AFSCME), and the American Federation of Teachers (AFT)—have continued to spend on large-scale external organizing campaigns, such as efforts to organize home and child care workers or independent providers, and plants of foreign automakers in the south.