This term, the Supreme Court will decide Janus, where it will determine the future of agency shop agreements in public sector unions. Despite being a public-sector union case, Justice Ginsburg raised a question on many people’s minds at oral argument: “what happens in the private sector?” Her question may prove prescient, considering that five justices in Harris v. Quinn’s dicta questioned an older line of cases upholding private sector agency fee arrangements. Contrary to others who have spoken on this issue, I believe that a holding striking down public sector agency shop agreements in Janus could spill into the private sector without doing much violence to the state action doctrine….
What will happen to public sector unions after the Supreme Court rules on the Janus v. AFSCME case this spring? Indiana teachers are already there. Slammed by a “right to work” law in 1996 and a new barrage of attacks in 2011, the teachers experienced what many unions are afraid of—a big drop in membership.
But the Indiana State Teachers Association didn’t roll over and give up after that. The union developed a tracking system called “Go Green” to help local leaders get membership back up.
It’s working. The first year of the program, the union narrowed its deficit between existing members lost to retirement and new members gained. The second year, it broke even. The third year, statewide membership increased.
This is in a legal environment that’s worse than right to work. Budget cuts in 2011 were paired with sweeping restrictions that kneecapped unions. Teachers bargain over only wages and benefits, and only between September and November of each year. Past that, impasse is declare and a third-party factfinder decides the final agreement.
…. So how does it work? The heart of the “Go Green” program is getting teachers in every school involved in signing up members.
Schools below 50 percent union membership are flagged as red. Schools at 50 percent or higher are coded yellow, and those at 70 percent or higher are green. The color scheme helps officers and association reps (stewards) prioritize which schools, and even which parts of buildings, need the most help. ….
….LIVING WITHOUT DUES DEDUCTION
A popular line of anti-union attack by state legislators is to ban employers from deducting dues from members’ paychecks. Dues deduction is banned for Michigan teachers, for instance, and for the whole public sector in Wisconsin.
Indiana has no such law at this point—but the teachers union opted to stop payroll deduction anyway. When new members sign up, they give the union their bank or credit card information to process dues directly.
This preempts a fight with hostile legislators and keeps the union’s focus on talking to teachers. It also takes control of union funds out of the hands of employers…..
Standing up to bosses is essential to being a steward. On the shop floor and in grievance meetings, you must defend the actions of members and contest those of management.
In many cases you should be able to make your points temperately, practicing “quiet diplomacy.” But occasions will undoubtedly arise when you will want to raise your voice, challenge a supervisor’s credibility, or argue your case in other vigorous ways.
A widely accepted labor relations canon allows employers to discipline workers who fail to act respectfully toward management. Some legal treatises call this the “master-servant rule.”
But if stewards were subject to this rule while engaging in union activity, they would face an intolerable risk: speaking up for a member could put their own jobs in jeopardy. To resolve this dilemma, labor law accords a special status to union representatives. ….
The economy is growing but our paychecks are not. That’s because employers have, over decades, built a political apparatus to hold down pay.
…. The United States needs a different kind of collective bargaining that responds to the changes in the economy over recent decades. In this modernized bargaining system, virtually all workers would be able to collectively bargain; bargaining would occur primarily at the industry level; and workers would have sufficient power to negotiate with employers. This new kind of bargaining can be created through a national policy of bargaining through wage boards, where employers, workers, and the public negotiate collectively. Wage boards would represent a significant change from the current bargaining process, but they have a proven track record in several U.S. states as well as in other countries.
Wage boards raise compensation for all types of workers, whether they are contracted temp workers or employees of a dominant firm; whether they are in a union or not; and regardless of race, ethnicity, gender, and sexual orientation. Rather than allowing potentially arbitrary or discriminatory factors influence workers’ pay levels, wage board panels set minimum pay levels based on measurable indicators such as the work and required skills. Furthermore, because wage boards raise minimum standards for wages and benefits across an industry, they help reduce firms’ incentives to try to cut labor costs by discriminating, contracting out work, or fighting unions.
Wage boards would also help boost productivity by ensuring that similar work receives similar pay. This enables a more efficient allocation of resources and encourages more cooperative firm-level relations between workers and their managers.11 Wage boards would help high-road businesses compete on an even playing field, as low-road employers would face new minimum standards for pay and benefits. ….
….In order for bargaining above the firm level to function properly, workers must be able to take collective action without fearing retaliation from their employer. Not only does current law fail to protect actions necessary for firm-level bargaining, but it also provides fewer protections for the kinds of actions—such as boycotting and striking—needed to make industry-level bargaining work. This is why policymakers must broaden and enhance worker protections.
Additionally, wage boards create a free-rider problem because workers will benefit from higher standards even if they do not pay the costs of achieving them. As a result, wage board policy reforms will need to establish new ways of joining unions and other worker organizations that do the work necessary for industry-level bargaining…..
From the abstract:
Unions today are under First Amendment fire, with the compelled speech doctrine as the weapon of choice. Conservative interests are waging a legal war against agreements that include “fair-share service fees,” under which public-sector unions are permitted to charge non-union members to pay their share of the costs of collective bargaining. Espousing libertarian theories of free speech doctrine, the National Right to Work Legal Defense Foundation and its allies maintain that fair-share service fees, at least in the context of public-sector unions, constitute a form of political speech, and that laws mandating their payment by non-union members violate the First Amendment’s prohibition against compelled speech. The Supreme Court is poised to accept this position, having granted certiorari in Janus v. American Federation of State, County & Municipal Employees, Council 31, a case that threatens to overrule the Court’s longstanding acceptance of the constitutionality of fair-share service fees.
Notwithstanding the superficial appeal of the compelled speech argument, this Article argues that pro-union interests have plenty of cover within the First Amendment’s freedom of association doctrine. Viewing Janus and its ilk through an associational lens demonstrates the fallacies that lie behind doubts concerning the constitutionality of such agreements. Although it is doubtful that the Supreme Court will reaffirm the constitutionality of fair-share service fees this term, it is important to air such arguments in order to head off potentially even more significant First Amendment attacks on unionism that are currently underway and to articulate a theory of the First Amendment that remains consistent with the basic New Deal compromise that leaves matters regarding labor policy to our legislatures, where they belong.
From the abstract:
In Agency Fees and the First Amendment, Professor Benjamin Sachs offers a pair of novel arguments for why the Court should pause before invalidating public sector union agency fee agreements throughout the country.
First, he argues that the money sent to unions to offset their bargaining costs is better viewed as the government employer’s money than as the employees’. Collective bargaining agreements force employees to turn the money over to the union on pain of losing their jobs, after all, and so the workers never have a “genuine choice” whether to make the payment at all. That, Sachs explains, should lead us to “treat agency fees as a direct payment from employer to union.”
Second, Sachs argues that the money might instead be better understood as the union’s all along. But for the wage premium that unions bring about for their workers, the argument goes, the fees that unions receive would not exist — and so the money is properly viewed as the union’s property from the outset.
These arguments are among the best defenses of agency fees that I have seen. Ultimately, however, both arguments are susceptible to counterattack for reasons discussed in Parts I and II herein. In a final concluding part, I express my agreement with Sachs on another point: the twenty-two states that currently permit agency fee agreements in the public sector can undo the impact of an adverse outcome in Janus by authorizing government employers to reimburse unions directly for their bargaining costs. It is this legislative alternative that, in my view, warrants the greatest attention from labor proponents in the coming years.
From the abstract:
Union worker-owned cooperatives (union co-ops) offer a means to combat growing income and wealth inequality, create jobs, and recirculate money in the communities in which they are located. This article contributes to the academic literature about cooperative economics, worker ownership, and labor relations in two distinct ways. First, it relies on original author-collected data from interviews of those involved in establishing Our Harvest, an urban farm in Cincinnati, to discuss the issues involved in establishing a union co-op. Our Harvest was the first union co-op created because of a 2009 partnership to foster union co-ops in the United States. Second, the article addresses the labor law issues involved in establishing a union co-op. The issues include whether worker-owners are covered by the National Labor Relations Act, whether a co-op is required to bargain about worker ownership with the union representing its employees, whether a union co-op can require its employees to join a union, and how union co-ops can use interest-based collective bargaining. The article suggests ways that unions can legally support and finance union co-ops, provides an appendix of legal services, and includes tables to simply complex legal issues. At its best, the article will contribute to the scaling up of union co-ops and a concurrent revival of labor law that enables a more equitable economy for all.
Source: Michael M Oswalt, The Cambridge Handbook of U.S. Labor Law: Reviving American Labor for a 21st Century Economy (Richard Bales & Charlotte Garden, eds.) (CAMBRIDGE UNIV. PRESS, Forthcoming). March 22, 2018
From the abstract:
While asking voters to make electoral decisions in spaces owned and curated by an interested party would be perceived as outlandish in a political context, labor law encourages it. This chapter presses for reform by highlighting cutting-edge electoral field research, backed by established work on context, memory, and decision-making, suggesting that voting in what is effectively the employer’s campaign headquarters is profoundly preference distorting. That change is possible is highlighted by the reality that although so-called “on-site” voting has long been the National Labor Relations Board’s practice, nothing about it is legally compelled. In fact, the law requires only that polling places be picked on a case-by-case basis through a variety of factors like convenience and integrity. The problem, however, is that non-binding administrative guidance makes workplace voting effectively automatic. Though the guidelines have proved surprisingly durable, the case for rewriting them has never been stronger. Doing so is important not simply to reclaim representation elections from the margins of democratic practice, but to initiate a modern era of neutral-site, mail, and even internet-based voting.
The demise of “fair-share” rules could cripple organized labor. Here’s a viable alternative. …. To avoid a fatal erosion of their funding base, public-sector unions need a new strategy. Their best bet is to allow those employees who don’t want to pay their fair share to give their money to a charity of their choosing. ….