Category Archives: Future of Unions

It Started in Wisconsin

Source: Ben Manski, Sarah Manski, Jacobin, March 1, 2018

The rise and fall of Wisconsin’s remarkable 2011 uprising holds lessons for a post-Janus world…..

…. Journalists reporting on the implications of the impending Janus decision often note that recent experiences in Wisconsin offer a preview. In this, they’re usually referring to the impacts of anti-union legislation signed into law in Wisconsin in 2011-2012. But we think Wisconsin offers another set of lessons as well: of how a twenty-first century mass uprising by hundreds of thousands — perhaps more than a million — working people came about in one US state, and of where that unprecedented uprising faltered. ….

Will the Court Consider the Facts in Janus?

Source: Andrew Strom, On Labor blog, February 28, 2018 

Mark Janus’s lawyers are desperate to have the Court decide Janus v. AFSCME without considering any facts.  Janus is an Illinois state employee, who is represented by AFSCME Council 31.  Like all other employees in his bargaining unit, he is required to pay fair share fees to the union to cover the costs of providing representation.  Janus wants to Court to rule that these fees are unconstitutional without even considering how AFSCME spends these fees.  Janus also thinks that somehow the Court can decide that his refusal to fund union speech on workplace issues is protected by the First Amendment without overturning a series of cases holding that the grievances of public employees are not a form of speech protected by the First Amendment.  In addition, Janus thinks that merely by saying so, the Court can decide that states have a compelling interest in requiring lawyers to pay bar dues to mandatory bar associations, but no similar compelling interest in requiring public employees to pay fair share fees.  Janus’s lawyers realize that the more the Court considers actual facts, the harder it is for them to win their case, so their approach has been to insist that the case can be decided without any factual record.  But, the oral argument made clear that if the Court is not prepared to simply reaffirm its forty-year old precedent in Abood v. Detroit Board of Education, the only responsible move is to remand the case to develop a factual record…..

Related:
Coverage After the Janus Oral Argument
Source: Maddy Joseph, On Labor blog, February 28, 2018

The Supreme Court heard oral argument on Monday in Janus.  Analyses report that, as expected, there were pointed questions for AFSCME and Illinois by Justices Alito and Kennedy; the four liberal justices took every opportunity to highlight the potential effects of overruling Abood on collective bargaining and the ability of governments to manage their workforces.  Justice Gorsuch was silent.  There is a summary on SCOTUSblog, plus another analysis there.  NPR, the Wall Street Journal, and the LA Times also have solid summaries.  At the Atlantic, Garrett Epps highlights how little hard evidence there is in Janus–with no trial, there is not a developed record; and neither Janus nor the U.S. filled in those facts at argument.

The Times had a nihilistic editorial: assuming that the Court would overrule Abood, the editorial put Janus in political context.  It began with Merrick Garland and ended, “Whatever the justices decide in Mr. Janus’s case, the drama that preceded it is another reminder of the importance of every Supreme Court appointment.”…..

Argument analysis: Gorsuch stays mum on union fees

Source: Amy Howe, SCOTUSblog, February 26, 2018

The Supreme Court heard oral argument today in Janus v. American Federation of State, Municipal, and County Employees, a challenge by an Illinois child-support specialist to the fees that he is required to pay to the union that represents him, even though he does not belong to any union. Although this is the first trip to the Supreme Court for Mark Janus, the employee, it was the third time in four years that the justices have taken the bench to consider the issue presented by Janus’ case. After roughly an hour of sometimes testy debate in the courtroom, the outcome almost certainly hinges on the vote of the court’s newest justice, Neil Gorsuch – who did not tip his hand, opting instead to remain silent…..

Unions are confronted with an existential threat

Source: The Economist, February 22, 2018

Mark Janus could be making history this year. On February 26th the social worker from Illinois will be sitting with his two lawyers in the hallowed setting of the Supreme Court as the justices hear one hour of oral arguments in Janus v American Federation of State, County and Municipal Employees, which asks whether public employees like himself, who choose not to join their designated union, may still be charged a compulsory “agency fee” to support collective bargaining. Mr Janus argues that the fee violates his First Amendment right to freedom of speech, because it forces him to subsidise an organisation whose bargaining position he rejects.

The court’s ruling in the case could determine the future of the labour movement…..

Janus and fair share fees: The organizations financing the attack on unions’ ability to represent workers

Source: Celine McNicholas, Zane Mokhiber, and Marni von Wilpert, Economic Policy Institute, February 21, 2018

From the press release:
In a new paper, EPI Labor Counsel Celine McNicholas and research assistant Zane Mokhiber report that the Supreme Court case Janus v AFSCME Council 31, along with previous cases challenging unions’ right to collect “fair share” fees from nonmembers, have been financed by a small group of foundations with ties to the largest and most powerful corporate lobbies. Analyzing Internal Revenue Service documents, the authors find that several of the foundations supporting anti-union litigants share the same donors—including the Sarah Scaife Foundation, The Lynde and Harry Bradley Foundation, the Ed Uihlein Family Foundation, and the Dunn’s Foundation for the Advancement of Right Thinking.

Working people who choose not to join their workplace’s union, but are still covered by a collective bargaining agreement, do not pay union dues. Instead, they pay “fair share” fees to cover the basic costs that the union incurs representing them. If the court finds in favor of the plaintiffs in Janus, unions representing public-sector workers could be prohibited from collecting these fees. The authors explain that if this happens, unions will be forced to operate with fewer and fewer resources. This will lead to reduced power—at the bargaining table and in the political process….

Don’t Fall for the Members-Only Unionism Trap

Source: Chris Brooks, Labor Notes, January 4, 2018

One of corporate America’s next big goals might surprise you: passing legislation to prevent unions from having to represent workers who don’t pay dues. This is just the latest of many business-friendly labor law reforms proliferating across the country. …..

….. Some union supporters have argued that the way to solve the free-rider problem is by allowing unions to simply kick out the “freeloaders.” ….

…. Now, employer-backed groups are making similar arguments. The State Policy Network (SPN)—a coalition of corporate-financed right-wing think tanks—is also advocating for laws that would eliminate the requirement that unions represent non-members in a unionized workplace.

What do right-wing advocates of this strategy hope to accomplish? For an answer, we can look at the case of unionized teachers in Tennessee. ….

Democrats Paid a Huge Price for Letting Unions Die

Source: Eric Levitz, New York, January 26, 2018

The GOP understands how important labor unions are to the Democratic Party. The Democratic Party, historically, has not. If you want a two-sentence explanation for why the Midwest is turning red (and thus, why Donald Trump is president), you could do worse than that.

With its financial contributions and grassroots organizing, the labor movement helped give Democrats full control of the federal government three times in the last four decades. And all three of those times — under Jimmy Carter, Bill Clinton, and Barack Obama — Democrats failed to pass labor law reforms that would to bolster the union cause. In hindsight, it’s clear that the Democratic Party didn’t merely betray organized labor with these failures, but also, itself…..

Public Sector Union Dues: Grappling with Fixed Stars and Stare Decisis (Part I)

Source: Victoria L. Killion, Congressional Research Service, CRS Legal Sidebar, LSB10042, December 4, 2017

The Supreme Court long ago described the First Amendment’s protection against compelled speech as a “fixed star in our constitutional constellation.” This Term, the Court may decide whether it has steered too far from that shining precept in the area of public employee union dues (or agency fees) in Janus v. American Federation of State, County, and Municipal Employees, Council 31. Specifically, the Court will consider whether to overrule its 1977 decision in Abood v. Detroit Board of Education, in which the Court announced the basic test for determining the validity of “agency shop” arrangements between a union and a government employer. Agency shop arrangements (sometimes called “fair share” provisions) require employees to pay a fee to the union designated to represent their bargaining unit even if the employees are not members of that union. The Abood Court held that these arrangements do not violate the First Amendment insofar as the union uses the fees for “collective bargaining activities” and not “ideological activities unrelated to collective bargaining.” In its October 2015 Term, the full Court heard oral argument on whether to overrule Abood, but ultimately divided four-to-four on this question following the death of Justice Scalia. Now that Justice Gorsuch has joined the bench, it remains to be seen whether a majority of the Court will reaffirm Abood or chart a new course. Part I of this two-part Sidebar provides general background on Abood and the case law leading up to Janus. Part II then discusses the perspectives Justice Gorsuch may bring to Janus and the potential implications of the decision for public sector collective bargaining and compulsory fees more broadly.

Public Sector Union Dues: Grappling with Fixed Stars and Stare Decisis (Part II)
Source: Victoria L. Killion, Congressional Research Service, CRS Legal Sidebar, LSB10041, December 4, 2017

As discussed in Part I of this two-part Sidebar, on March 29, 2016, an eight-member Supreme Court divided equally over whether to overrule its 1977 decision in Abood v. Detroit Board of Education and hold that public sector agency fees violate core First Amendment principles (the Court’s “fixed star”). Earlier this Term, the Court agreed to consider the question again in the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31. Part II of this Sidebar begins with a brief summary of the parties’ arguments in Janus. It then highlights some key statements from the prior decisions of Justice Gorsuch, who is likely to be a critical voice in deciding whether to overturn Abood. The post concludes by exploring the potential implications of the Janus decision.

Could Employee Choice End Labor Unions’ Influence?

Source: Adam C. Abrahms, Employee Relations Law Journal, Vol. 43, No. 1, Summer 2017
(subscription required)

The author of this article discusses a recent Bureau of Labor Statistics annual report, which found that private sector union membership has dropped to its lowest level in history, and its implications.

In 2016 private sector union membership dropped to its lowest level in history—a dismal 6.4 percent. Given the laws and systems in place related to union membership, this means that at least 94.6 percent of all American private sector workers currently choose not to be union members. The drop, recently reported in a routine annual report issued by the U.S. Department of Labor’s Bureau of Labor Statistics (BLS), also was the largest year over year percentage drop in recent years, dropping 0.3 percent, from 6.7 percent in 2015.

While the percentage of union members as a portion of the total workforce saw a steep drop, possibly more disturbing to union bosses is the fact that the actual raw numbers of union members also dropped over 100,000 members from 7.554 million to 7.435 million dues paying members. This loss of dues revenue could hurt unions’ efforts to organize members as well as lobby and elect politicians….