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.
Serious thinking about labor law reform seems to be coalescing around a few themes. One of these is the possibility of allowing state and local intervention into the rules of union organizing and collective bargaining. Pursuing that goal would mean reconsidering the preemptive effect of federal labor law.
This theme was clearly reflected in our Labor Day opinion writing wrap up. Newsweek published Sharon’s op-ed in which she argued that the debate over bold labor law reform has to include consideration of preemption rules. The New York Times ran an op-ed by Brishen Rogers and Willy Forbath in which they recommended that the NLRA be amended to allow state and local governments to legislate new models of collective bargaining above the floor of the NLRA. Moshe Marvit made the case in the American Prospect that the Supreme Court should revisit its precedent regarding NLRA preemption in order to allow more experimentation at the state and local level.
…..Right-to-work laws create two interlocking problems for labor unions. First, unions are legally required to represent all workers in a bargaining unit that the union has been certified to represent. In open shops, the “duty of fair representation” requires unions to expend resources on nonmembers who are covered by the union contract. This is known as the free-rider problem. Union activists often refer to workers who opt out of paying for the benefits of unionization as “freeloaders.” This leads to the second problem created by right-to-work laws: They undermine solidarity on the job by pitting workers who pay their fair share to support the union against workers who do not. This is the divide-and-conquer problem. In my use of these terms, the free-rider problem is institutional — the union has to expend resources protecting and fighting on behalf of workers who are not members and do not pay dues. The divide-and-conquer problem is interpersonal — when workers can opt out of supporting the union, this results in union and nonunion workers developing adversarial attitudes and behaviors toward one another, diminishing their unity on the job and their capacity for collective action.
Some on both the left and the right have argued that labor should deal with the free-rider problem by kicking out the freeloaders…..
…. In 2011, the newly elected Republican majority in the Tennessee legislature targeted the state’s collective bargaining law for teachers, eliminating exclusive representation and creating a negotiating process between teachers and local school boards that allowed for multiple organizations, including a “yellow” union—one that claims to represent teachers while advancing broader corporate interests — to represent teachers simultaneously at the bargaining table. Based on my experience as an organizer for the Tennessee Education Association (TEA), it is clear that jettisoning exclusive representation might have solved the free-rider problem for the union, but it exacerbated the divide-and-conquer problem. An examination of the Tennessee law—its implementation and the broader national context—reveals how the push by pro-union advocates to kick out freeloaders easily plays into the right’s strategies to diminish union power. ….
….Behind this loss there’s a glimmer of hope for labor. Decades of research on labor and globalization, particularly in manufacturing and the auto industry, lead me to believe that while the pro-union workers may have suffered a setback, the campaign is far from over. In fact, there are signs that the UAW’s organizing effort has made some lasting inroads that could lead to success down the road. …
In the wake of the UAW’s loss at Nissan, it’s clear that the dominant strategies for winning a union aren’t working. ….
…. The labor movement should see this moment as a wake up call, and launch a frank discussion about what works and what doesn’t, and what kind of strategies unions should adopt if they ever hope to regrow their strength, let alone expand into regions beyond the traditional bastions of union strength. Given the crushing defeat of the Machinists at Boeing and the UAW at the Volkswagen plant in Chattanooga, TN in the past few years, there’s urgency to the discussion — particularly to organizing the solidly anti-union South. ….
How a new kind of labor organization could address the grievances underlying populist anger. ….
…. Even before getting my small taste of what working-class Americans are experiencing in horse doctors’ doses, I had come to see the decline of unions as one of the country’s most pressing problems—and at least as much a social and political problem as an economic one. Old-style, mid-20th-century industrial unions had their flaws, unquestionably. But when unions work as they should, they serve important social functions. They can smooth the jagged edges of globalization by giving workers bargaining power. They are associated with lower income inequality, as the accompanying graph shows. Perhaps most important, they offer workers a way to be heard. “Unions provide a mediating function,” Matthew Dimick, a labor-law expert at suny Buffalo’s law school, told me. “Their social-capital function creates ties that reduce anomie and the sense of being abandoned and forgotten.” No other social institution, or at least none yet discovered, can serve that mediating function for workers. ….
…. In America, the modern conservative movement was founded on anticommunism and antiunionism. Senator Barry Goldwater (“Mr. Conservative”) built his career bashing unions. President Ronald Reagan, although a former union leader himself, made his bones by breaking the air-traffic controllers’ union. Just this past February, Republicans succeeded in their long push for a right-to-work law in Missouri. But the conservative war on unions is beginning to look like a Faustian bargain. If 2016 taught us anything, it was that miserable workers are angry voters, and angry voters are more than capable of lashing out against trade, immigration, free markets, and for that matter liberal democracy itself…..
This is a special issue of “Class, Race and Corporate Power”, part of a two-part series edited by Kim Scipes.
Introduction to Section on Labor and Social Justice by Section Editor Kim Scipes
John L. Lewis and His Critics: Some Forgotten Labor History That Still Matters Today
The Good, the Bad, the Ugly: A Lifetime with Labor