Wednesday, June 27, 2018
Janus Decision Reveals Two-Faced Nature of Collective Bargaining Law
The case of Janus v. A.F.S.C.M.E. Council 31 could not possibly have been named with any more poetic irony than it was. That's because Janus reveals the two-faced nature of federal labor laws, and the two-faced nature of the manner in which Democrats and Republicans talk about those laws.
The Supreme Court ruled 5-to-4 in favor of the plaintiff, Illinois state employee Mark Janus, against the defendant, the American Federation of State, County, and Municipal Employees, Council 31. The court's decision ends compulsory "fair share" fees for public sector workers, meaning that a government employee no longer has to pay dues to the union which is obligated to represent them, if that employee does not wish to be a member of that union.
Critics of the decision argue that it turns the whole set of people on government payroll into an effective "Right to Work" system. Right to Work laws, now enforced in 28 states, prohibit "union shop" and "closed shop" union security agreements; contracts between unions and management which, respectively, require employees to join a union (union shop) or the union (closed shop).
Critics also suggest that Right to Work laws, and the Janus decision, enable "free riders" to take advantage of being represented by unions, without having to pay anything. But what critics of Janus and Right to Work laws miss, however, is that, since the Wagner Act (the National Labor Relations Act of 1935), three quarters of the states have begun to allow public sector unions to engage in collective bargaining, emulating the Wagner Act (which pertains to employees in the private sector).
The Wagner Act required all employees in a private sector workplace (or bargaining unit) to be represented by the union receiving the majority vote in a union election, in all unions affiliated with the National Labor Relations Board (which the Wagner Act created).
So 80-year-old federal labor law - the Wagner Act / N.L.R.A. of 1935, signed into law by F.D.R., a Democrat - is the reason that there are free-riding workers who receive representation but don't pay for what they receive.
Remember, "free riders" are workers whom do not consent to be represented by "their union" (which they don't pay for). Most "free riding" workers don't want to pay for those union benefits; either because they don't feel that those benefits are adequate or otherwise appropriate, or because they don't want to settle for those benefits or settle for the union in charge.
These are people who might even want to form their own union. However, the union in charge, if affiliated with the N.L.R.B., would probably appeal to the N.L.R.B., and sue the smaller union, seeking to put it out of business for "cutting in on their action" by competing against the monopoly wielded by the union which won the legal right to represent workers through winning a union election.
The notion that government is a business - and an ordinary actor that can behave anywhere nearly as fairly as an enterprise that can actually go out of business - is contributing and the misguided idea that public and private sector union policy ought to look more or less the same. It is ironic that - after progressive government entered labor policy in order to counteract the power of monopolies, bust the trusts, and ensure competition - government is now enabling the anti-competitive and monopolistic behavior of unions. But it should not come as unexpected.
The lack of a clear delineation in the law between private property and enterprises offering public accommodations, and the number of forms of public assistance to ostensibly private enterprise, only serve to further complicate this blurring of public sector collective bargaining policy together with private sector policy.
If the Janus decision seems wise, then, in my opinion, it is only because it reveals the hypocrisy of the components of the law which serves as the underlying assumption upon which the foundation of misguided labor law rests.
This is to say that it reveals the hypocrisy of the "majority unionism" (unionism by majority vote) and "compulsory unionism" (extension of union representation through legal decree) through which the Wagner Act created the problem at hand; namely, the free rider problem, which Right to Work laws and the Janus decision aim to solve, but which merely serve as bandages upon the problem.
But to say that Right to Work laws and the Janus decision serve as "bandages" is an insult to bandages; they actually create new problems on top of the old ones, adding insult to injury. Right to Work laws create new problems which weren't there before, by limiting the right of unions and businesses to freely engage in contract, and have their contracts honored by the government. Now, in the aftermath the Janus decision, the Supreme Court has taken credit for taking action, when in reality it has merely refused to redress an already existing problem; that non-consenting private sector employees in most states receive union representation which they don't think benefits them.
And that will continue to be a contentious issue, whether employees represented by a union are paying for those benefits or not.
Written on June 27th and 28th, 2018
Published on June 28th, 2018