Category Archives: Labor Unions

Want to stop sexual abuse in the workplace? Unionize.

Source: Jeff Spross, The Week, November 27, 2017

….Harassment occurs at all levels of the economy precisely because it’s bound up with economic hierarchy. Women (and sometimes men) are targeted because they’re dependent on someone else — be it a boss or customer — for an income, a job, a promotion, a career path, etc. Women in low-wage work also often face retaliation for trying to fight back: not merely the loss of a career, but the loss of a viable income of any form.

We need to confront the workplace hierarchy directly. That means unions and labor organizing. It means demands for more democratic workplaces, and established institutions and practices for dealing with sexual harassment. Many companies already have human resource departments, and labor movements can and should force the creation of more. But even these can wind up focusing more on the business’ bottom line than the interests of owners. All of these demands must be backed by workers’ ability to threaten protests, work stoppages, and strikes…..

Reconciling Agency Fee Doctrine, the First Amendment, and the Modern Public Sector Union

Source: Courtlyn G. Roser-Jones, University of Wisconsin, Legal Studies Research Paper No. 1423, Last revised: September 14, 2017

From the abstract:
Few institutions have done more to improve working conditions for the middle class than labor unions. Their efforts, of course, cost money. To fund union activities, thousands of collective bargaining agreements across the nation have long included provisions permitting employers to require employees to pay “fair share,” or “agency” fees. In public unions “when the employer is the government” this arrangement creates tension between two important values: the First Amendment’s protection against compelled expression, and the collective benefits of worker representation. When confronted with this tension nearly forty years ago in Abood v. Detroit Board of Education, the Supreme Court struck an uneasy compromise, allowing public sector unions to recoup expenses for collective bargaining, but not for political activity. For decades, the decision has been a lightning rod, with some scholars calling for its reversal and others insisting on its preservation. In the meantime, the realities of modern public sector collective bargaining have changed, and First Amendment jurisprudence has evolved. The Supreme Court has recently signaled an interest in revisiting the issue, and test cases are making their way through the circuit courts. The time has come to reconsider Abood’s fragile compromise. This Article offers a new way forward within the First Amendment, one that honors the importance of both union activity and free expression. It proposes a way to reconcile these twin interests while also updating the doctrine to account for state legislative efforts, modern union realities, and First Amendment jurisprudential developments. Specifically, the Article argues that agency fees should be brought into step with current political contribution and campaign finance jurisprudence. Under this approach, some agency fees “but only those that are “closely drawn” to avoid unnecessary expressive infringement” will remain lawful. This approach, a middle ground, may not satisfy those who ardently oppose agency fees of any kind, or those who want Abood’s rule fully upheld. Still, it emerges as the best way forward through a difficult terrain: It avoids the false dichotomy between union and political activities, respects state legislatures that craft innovative collective bargaining statutes, and grounds public sector agency fees with other coherent aspects of First Amendment jurisprudence.

Is it Time for a New Free Speech Fight? Thoughts on Whether the First Amendment is a Friend or Foe of Labor

Source: Catherine Fisk, University of California, Berkeley – UC Irvine School of Law, Research Paper No. 2017-27, May 30, 2017

From the abstract:
The First Amendment, at least in the Supreme Court, hasn’t been much of a friend to labor unions. Among the few First Amendment rights that the Supreme Court has expanded in the labor union context recently is the right of union represented employee to refuse to pay fees to the union that represents them. Notwithstanding reasons to believe the contemporary First Amendment is more likely to be foe than friend of labor, history suggests the contrary. This essay explains why, making three arguments. First, social movements exist only where and when there is a robust commitment to free speech, and workers have real power only when labor has the capacity to be a social movement. Second, labor gained power as a social movement by engaging in protest and it started down the path to losing power when, in a series of cases decided between 1941 and 1960, the Supreme Court largely eliminated constitutional rights to picket and boycott. In the early 1960s, just when the Court finished creating the labor protest exception to the free speech clause, it extended First Amendment protection to civil rights and antiwar protest. Just as civil rights protesters drew on the sit down strike pioneered by labor in the 1930s, the Supreme Court found a First Amendment right to engage in civil rights protest by drawing on the cases that labor unions had won in 1939 and 1940. Third, the literature on the role of lawyers for social movements between the 1930s and now suggests the importance of law to how lawyers advise their clients. The only hope for the future of the labor movement is in cultivating a spirit of protest. Without the right to engage in robust protest, labor lawyers are in a difficult place when they advise their clients, and can do little to create the legal space to enable workers and social justice activists to launch a new round of free speech fights of the sort that brought the labor movement into power in the 1930s.

Friedrichs v. California Teachers Association

Source: Diana Liu, Berkeley Journal of Employment & Labor Law, Volume 38 Issue 2, 2017

During the 2016 term, the Supreme Court heard Friedrichs v. California Teachers Association, which presented two questions to the court. First, should public sector “agency shop” arrangements be invalidated under the First Amendment? Second, does requiring public employees to affirmatively object, rather than affirmatively consent, to subsidizing nonchargeable speech by public-sector unions violate the First Amendment? In a non-precedential per curiam opinion that offered no explanation on the merits of the argument, the evenly-split Court affirmed the decision of the Ninth Circuit. The subsequent rehearing petition was denied, leaving the Ninth Circuit decision to stand.

In affirming the Ninth Circuit’s decision, the Supreme Court left in place its previous decision in Abood v. Detroit Board of Education. In Abood, the Court upheld the constitutionality of compelling employees to pay agency fees to their collective bargaining representative. As a result, “agency shop” arrangements remain valid under the First Amendment. The Court also upheld the constitutional validity of requiring public employees to affirmatively object to funding non-collective bargaining related activities. With the divided Court’s per curiam opinion, Friedrichs has for now reaffirmed the controlling power of Abood, leaving undisturbed the future abilities of public employee unions to raise funds to support their collective bargaining activities. ….

Facing Wisconsin-Style Attack, Iowans Stick to the Union

Source: Dave Kamper, Labor Notes, November 16, 2017

Never let a good crisis go to waste. Iowa’s Republican legislative majorities assumed that an aggressive anti-union law would persuade public employees to abandon their unions. Instead they created a backlash, sparking unions to reconnect with members and their communities.

So far 29,552 people have voted to stay union, and just 651 have voted against.

House File 291, passed in February, defangs public sector bargaining and requires a vote, one year before the contract expires, on whether members still want a union at all. The union pays for this election—an anti-union tax set at $1 per member this year, which can be increased at the whim of Iowa’s labor board.

The kicker is, the union must win a majority of all eligible voters, not just of votes cast. Even if nobody votes no, but half the members don’t vote, the union will be decertified. Unions have pointed out that none of the law’s backers could win reelection under these skewed terms.

The law also eliminates public sector unions’ right to collect dues through payroll deduction. And unions can no longer negotiate over insurance, hours of work, professional development, or retirement benefits.

A similar law in Wisconsin, Scott Walker’s infamous Act 10, has decimated public sector unions. Most of the Wisconsin bargaining units that decertified right off the bat in 2011 had a majority of voters opting to keep the union—they just couldn’t get a majority to cast ballots…..

What Unions Do for Regulation

Source: Alison D. Morantz, Annual Review of Law and Social Science, Vol. 13, 2017
(subscription required)

From the abstract:
The question of how organized labor affects the content, enforcement, and outcomes of regulation is especially timely in an era in which protective laws and regulations are being scaled back or minimally enforced and union membership is in decline. This article surveys literature from a wide array of regulatory domains—antidiscrimination, environmental protection, product quality, corporate governance, law enforcement, tax compliance, minimum wage and overtime protection, and occupational safety and health—in an effort to identify common findings on what unions do for regulation. Literature on the topic has taken up five questions: how labor unions affect the passage of protective laws and regulations; how they affect the outcomes that regulators target; how they affect the intensity of regulatory enforcement; the specific activities and channels of influence they use to influence regulated outcomes; and the role they play in self-regulation. Drawing on empirical literature from the domains listed, I review and analyze literature on each of these questions and offer several conclusions and suggestions for future research.

Reconstructing resistance and renewal in public service unionism in the twenty-first century: lessons from a century of war and peace

Source: Whyeda Gill-McLure & Christer Thörnqvist, Labor History, Volume 59, 2018
(subscription required)

From the abstract:
This special issue uses the occasion of the centenary of the Whitley Commission Reports to illuminate the contemporary crisis in public service industrial relations from a historical perspective. In all six countries studied—Britain, France, Germany, Italy, Sweden and the USA—public service employment is labour intensive and quantitatively significant in the overall economy. Public services have also been major targets of neoliberal reforms, starting in the UK and the USA at the turn of the 1980s and in the other countries about a decade later. In addition, the relatively high union density and the political dimension of public services and public union strategies have been major targets of new public management and more latterly austerity. However, the regressive period has had a differential impact in different countries. In the liberal market economies of the UK and the USA, the neoliberal turn has destabilised traditional patterns of public sector industrial relations to greatest effect. While in the more coordinated market economies, traditional arrangements and values have been more resistant to austerity and neoliberal reforms. We attempt to shed light on these differential impacts through a critical analysis of the historical evolution of public sector industrial relations in each country.

Related:
100 years of Whitleyism: a century of public service industrial relations in Europe and the US
Source: Guest Editors – Whyeda Gill-McLure and Christer Thörnqvist, Labor History, Volume 59, 2018
(subscription required)

Public sector unions, democracy, and citizenship at work

Source: Patrice M. Mareschal, Labor History, Volume 59, 2018
(subscription required)

From the abstract:
Since the 1970s, governments around the world have been engaged in a conflict over the appropriate role of public services in society. In the U.S. and elsewhere, public services have faced pressures to restructure, reduce the size of government, and make government more ‘business-like.’ This paper examines how the evolution of public services and public sector unions shaped the distinctive character of public sector industrial relations in the U.S. Next it demonstrates how this distinctive character made public services and public sector unions vulnerable to neoliberal attacks and New Public Management reforms. It concludes by theorizing about how the frameworks of citizenship at work and union renewal may be used to strengthen the essential identity and restore the positive role that public sector unions have traditionally played in society.

How So-Called “Right to Work” Laws Aim to Silence Working People

Source: Amy Traub, Dēmos, 2017

From the introduction:
In America, working people have the freedom to band together with their co-workers to negotiate for a fair return on our work. We have the freedom to act together so can we speak with a more powerful voice. We have the freedom to join and form unions. Yet today, powerful interests want to take away that freedom. Corporate lobbyists have pushed federal and state-level policies deceptively named “Right to Work” laws that strip away the freedom to negotiate for a fair return on our work. These laws are designed to drain workers’ collective resources by requiring unions to provide representation to people who make no contribution to sustain the union. In essence, so-called “right to work” laws aim to silence working Americans, which causes their wages and working conditions to deteriorate, making it more difficult to sustain a family. Economists find that in states that have adopted these laws, the typical full-time worker is paid $1,500 a year less than their counterpart in a state that has not undermined workers’ rights.

This Demos Explainer clarifies what misleadingly named “right to work” laws do, how they silence workers’ collective voice, and what their impact has been in states that adopt them. We also explore the roots of this anti-worker policy in efforts to cut wages and solidify racial divisions among workers in the Jim Crow South. Today, as “right to work” laws are promoted in a growing number of states and in the U.S. Congress, Demos aims to ensure that elected leaders, the media, and ordinary Americans understand the true nature of this policy.