Category Archives: Labor Unions

After Janus

Source: Martin H. Malin, Catherine Fisk, California Law Review, Forthcoming, Date Written: September 6, 2018

From the abstract:
The Supreme Court in Janus v. American Federation of State, County, and Municipal Employees Council 31 upended public sector labor law by finding a novel First Amendment right of public employees to refuse to pay union fees and declaring unconstitutional scores of laws and thousands of labor contracts. This Article assesses the constraints on public sector labor law post-Janus, examines the variety of legislative responses, and proposes a path forward.

Janus makes it difficult to address the collective action problem facing all large groups. Although it is in the interest of every member of a group to engage in collective action to provide common goods, it is also in the each individual’s interest to let others incur the costs of doing so. The Janus Court misstated the nature of the collective action problem when it said the problem was free-riding on union-negotiated benefits. The problem is that, without some way to require all who benefit to share the costs, unions will not negotiate effectively for the benefits in the first place, so there will be no common goods to free ride on.

This Article explains public sector unions’ apparently surprising reluctance to respond to the collective action problem exacerbated by Janus in the way that some scholars and a number of legislatures have proposed. Most proposals and enacted legislation continue union financial solvency in the short-term but sacrifice the fundamental nature of unions as membership organizations governed by and for workers. Some adopt some form of members-only representation, thus abandoning the principles of majority and exclusive representation.

Can Unions Be Sued for Following the Law? Responding to William Baude & Eugene Volokh, The Supreme Court, 2017 Term — Comment: Compelled Subsidies and the First Amendment

Source: Aaron Tang, Fred O. Smith, Harvard Law Review, Vol. 132 no. 2, November 2018
(subscription required)

From the abstract:
Here is a short summary of the right-to-work movement’s legal strategy in the aftermath of its victory in Janus v. AFSCME: If you can’t kick a man when he’s down, when can you kick him? For within weeks of Janus’s pronouncement that the First Amendment forbids public sector unions to collect agency fees from objecting employees, right-to-work groups filed a flood of class action lawsuits seeking the refund of millions of dollars’ worth of fees that were paid in the years before Janus was even decided, when such fees were indisputably lawful. Commentators have observed that these retroactive refund suits threaten to bankrupt unions around the nation.

In Compelled Subsidies and the First Amendment, Professors William Baude and Eugene Volokh argue that “Janus makes it likely” that public sector unions will indeed be liable under 42 U.S.C. § 1983 for refunds of money they collected in years before Janus was even issued. We think otherwise, and this Response explains why.

We start in Part I by presenting a vision of the world as it would exist if Baude and Volokh are right. It turns out that imposing financial liability on public sector unions for conduct that was perfectly lawful when it took place (because both state law and judicial precedent authorized the unions to collect fair-share fees) is a kind of maneuver that cannot be neatly confined to the context of union fee refunds.

In Part II, we explain why this unsavory state of affairs is hardly necessary. In fact, the law requires otherwise. In particular, we describe three legal arguments that should stop the union-refund suits from getting off the ground: careful application of the doctrine of civil retroactivity; defenses that were available against the most closely analogous tort at common law, including that unions acted in good faith reliance on existing law; and ordinary principles of class action certification.

Exaggerating the Effects of Janus: A Reply to Professors Baude and Volokh

Source: Erwin Chemerinsky, Catherine Fisk, Harvard Law Review Forum, Vol. 132, p.42, 2018, Forthcoming

From the abstract:
In Janus v. AFSCME Council 31, the Supreme Court held public employers can no longer require employees to pay fair share fees, i.e., the employees’ fair share of the costs unions incur in negotiating and administering labor contracts on the employees’ behalf. This essay responds to an article by William Baude and Eugene Volokh, who argue that unions are likely retroactively liable for the agency fees that union-represented workers previously paid. We explain that public employee unions, as private membership organizations, are not state actors liable under 42 U.S.C. § 1983. We then show that even if unions were found to be acting under color of law for purposes of section 1983, they would be entitled to qualified immunity as a defense because negotiating for fair share fees did not violate the constitution at the time unions negotiated fair share fee agreements and received fees. At the very least, unions are entitled to the separate defense of good faith immunity available to private actors who are sued under section 1983 for conduct undertaken in good faith in collaboration with government actors. Finally, we show that unions are not liable on state law theories. Qualified immunity is a defense only to claims for damages under federal law, and good faith immunity has likewise been applied only to claims for damages. For that reason, plaintiffs in the post-Janus fee recovery litigation have alleged state law claims and styled them as equitable. Some states (e.g., California) have eliminated such liability through legislation. Even in states that have not enacted such laws, however, we show that well-settled equitable principles foreclose liability. Finally, this essay responds to Baude and Volokh’s argument that Janus endangers other mandatory fees imposed by the government, such as bar dues and public university student activity fees.

Wisconsin, Conquered

Source: Luke Savage, Jacobin, November 26, 2018

Republicans could not have conquered the labor stronghold of Wisconsin without the complacency of the Democratic Party.

A review of The Fall of Wisconsin: The Conservative Conquest of a Progressive Bastion and the Future of American Politics by Dan Kaufman (W.W. Norton, 2018).

….Its significance as a target of Republican belligerence should therefore not be understated. Indeed, as Kaufman shows, the state became a key battleground during the Tea Party ascendancy and a veritable laboratory for the power of big donors and unrestricted dark money following the Supreme Court’s disastrous Citizens United decision. Using their astroturfed American For Prosperity advocacy fund, Charles and David Koch spent tens of millions on the 2010 elections — the latter making a personal donation of $1 million to the Republican Governors Association. Even more money was poured into subsequent elections, with Walker out-fundraising his Democratic opponent in the 2012 recall contest by a whopping $30 million to $4 million.

Another institutional antagonist is the American Legislative Executive Council (ALEC), a nonprofit charity whose donors include Exxon, Koch Industries, and major pharmaceutical interests. An example of lobbying at its most efficiently dystopian, ALEC assembles conservative ideologues, lawmakers, and corporate interests with the goal of crafting model legislation, targeting unions, environmental laws, public schools, and voting rights, to be imposed on jurisdictions throughout the country. Versions of several laws, including a right-to-work bill with virtually identical language, were successfully implemented during Walker’s control of the statehouse.

Wisconsin’s story is therefore an alarming illustration of the Republican Party’s long-term strategy at work and what its vast political and financial infrastructure is ultimately capable of even in the face of strong opposition. Its goal, as Kaufman’s book makes clear, is not just the passage of specific pieces of conservative legislation and laws that favor corporate interests, but the destruction of all obstacles to permanent Republican control of the legislative process and the reconfiguring of politics with the aim of consolidating those interests in perpetuity…..

Financialization and the Decline of Organized Labor: A Study of 18 Advanced Capitalist Countries, 1970–2012

Source: Christopher Kollmeyer; John Peters, Social Forces, Advance Access, Published: November 14, 2018
(subscription required)

From the abstract:
Is financialization contributing to the slow decline of union density that is occurring across most advanced capitalist countries? Combining insights from literatures on financialization, corporate governance, and comparative political economy, we argue that the growing dominance of finance within advanced capitalism weakens unions through several channels, and plays an important but underappreciated role in the deunionization of national workforces. Using data from 18 advanced capitalist countries over several decades, this assertion is tested against the literature’s existing explanations for declining union density. Results from panel regression models suggest that financialization is an important cause of union decline, but that its particular effects vary between different types of advanced capitalism. The study concludes by arguing that financialization creates new interconnections between firms and finance capital, resulting in business practices that ultimately put downward pressure on union densities across advanced capitalist countries.

Lessons from Teachers on How to Strike and Win

Source: John McGough, Labor Notes, October 15, 2018

Teachers across the country this year are breathing new life into the strike—galvanizing members and winning gains.

These strikes are fueled by rank-and-file anger. Many were coordinated not from above by the official union leadership but by networks of activists. The size of the mobilizations and level of organization have caught many by surprise.

The teachers have put the strike—labor’s most powerful weapon—back in our playbook. They’re showing what can be done when workers unite, organize creatively, and take to the streets.

Teachers have wiped away some of the stigma attached to strikes and shown how a strike can be built by rank-and-file members. Here are a few lessons: …..

Related:
Teacher Strike Wave: By the Numbers
Source: Jasmine Kerrissey, Labor Notes, October 4, 2018

In the Pacific Northwest, the First Paraeducator-Led Strike of the Teacher Uprising

Source: Dan DiMaggio, Labor Notes, November 16, 2018

Paraeducators in Port Angeles, Washington, are on strike. In this year’s wave of teacher strikes, it’s the first one led by paraeducators.

Teachers have refused to cross their picket lines, shutting down the district’s schools Thursday and Friday.

The 115 paradeucators in this small coastal city, just across the water from Canada, assist with everything from reading lessons to recess. Paraeducators play an essential role in today’s schools, offering extra attention and care to students who need it—especially those with disabilities…..

How Unions Help Moms Take Maternity Leave

Source: Jonathan Timm, The Atlantic, October 29, 2018

Besides fighting for workers’ benefits, unions can influence whether workers take advantage of the ones already available to them, a new study shows.

Related:
Labor Unions Help Employees Take More Paid Maternity Leave
Source: Vanderbilt University – Owen Graduate School of Management, Press release, September 20, 2018

Union-represented working mothers are at least 17 percent more likely to use paid maternity leave than comparable nonunion working mothers Facilitating working mothers’ use of paid maternity leave is a key issue for policymakers and workers in many countries. And the United States is far behind in this global movement; the United States is the only industrialized nation that lacks universal paid leave for new parents, although there are now a very small number of state-based programs and many employer-provided plans.

…. Park, in new research to be published in the Industrial and Labor Relations Review, breaks down the leave-taking decision into four key steps:
– Availability: The policy needs to be available,
– Awareness: the worker needs to be aware of it,
– Affordability: the worker needs to believe she can afford to take a leave, and
– Assurance: the worker needs to have implicit or explicit assurances that taking paid leave is unlikely to result in negative consequences…..

The Voting Behavior of Labor Union Members in the 2016 Presidential Election

Source: Daniel J. Gillis, All College Thesis Program, 2016-present, Spring 5-7-2018

From the abstract:
The conventional wisdom surrounding the 2016 United States presidential election suggests that Donald Trump, the Republican candidate, received significant support from labor union members. This has drawn attention, as labor union members have long been considered a crucial Democratic voting bloc. Previous studies have shown that Democratic support from organized labor groups has been declining over time. The stereotypical labor union member has long been a white working class male with a high school level of education in a private sector union, and recent work has primarily focused solely on these individuals. However, those traditional labor union members have been found to make up a declining share of labor union members. Therefore, there is a considerable gap in the understanding of who labor union members in the United States are. This paper will consider the changing demographics of labor union members, and analyze ANES data to consider their behavior in the 2016 U.S. presidential election.