Sunday, July 29, 2018

Janus Decision Reveals Two-Faced Nature of Collective Bargaining Law

     The title of this speech is “Janus Decision Reveals Two-Faced Nature of Collective Bargaining Law”. This title alludes to the Roman god Janus, the two-faced god of duality, transitions, gates, beginnings and endings, passages and doorways. I make this reference because, in my study of labor policy, I have discovered that numerous false dichotomies and false choices exist, and persist, about multiple topics in labor law, which cloud the way we think about what fair and free association with unions ought to look like.
     Recently, the Supreme Court handed-down its ruling in the case of Janus v. A.F.S.C.M.E. Council 31. The plaintiff in that case - an Illinois public employee and child support specialist named Mark Janus - sued the public-sector union A.F.S.C.M.E. (the American Federation of State, County, and Municipal Employees), as well as various departments of the Illinois state government.
     Mr. Janus and his attorneys argued that it violated his First Amendment rights to be compelled to pay what are called “fair share” dues. “Fair share” dues (also called agency fees) cover the costs of the expenses incurred by the union. These expenses include engaging in collective bargaining on behalf of workers, and administering contracts.
     According to Janus, unions are private, independent organizations which are third parties to the employer-employee relationship; and therefore, his First Amendment -recognized freedom from association ought to preclude him from being compelled to pay to fund the transmission of political speech in which the union is involved (especially as a public-sector employee who has elected not to join a union). Mr. Janus felt that he was being compelled to pay a union that didn't represent him adequately, and as a result, was being compelled to pay to fund the transmission of political speech with which he disagreed.
     Janus also argued that, as a public sector employee, the government exerted an undue influence over him as an employee. Not only is the government his employer; when the government negotiates labor disputes involving public sector unions, it negotiates disputes which involve itself. This means that there is a potential conflict of interest, and so, the government's status as a neutral arbiter is questionable.
     Janus and his supporters say that, considering that it is a matter of public policy whether public employees are hired - and whether government agencies are created or abolished (as well as when, and how) - then it stands to reason that the collective bargaining in which public sector unions engage is innately political activity, and political speech. Also, that a non-unionized worker cannot rightfully be compelled to pay the union for anything it does.

     One month ago (on June 27th, 2018), the Supreme Court ruled in favor of Mr. Janus.
     This reversed the 1977 Supreme Court decision in D. Louis Abood v. Detroit Board of Education. Janus also reversed the effects of the 2016 case Friedrichs v. California Teachers' Association, which allowed Abood to stand. As you may remember, that was due to a 4-to-4 deadlock, which resulted from the death of conservative Justice Antonin Scalia, which prevented the court from coming to a majority ruling, resulting in the case's dismissal, allowing the lower court's ruling to stand.
     As a result of the Friedrichs case, the question of compulsory union dues for public sector workers was left unresolved for the subsequent two years. This allowed the continued collection of dues from non-unionized public-sector workers; essentially on the grounds that they could not logistically refuse the so-called “benefits” of union negotiation (which they, of course, do not consider to be benefits).
     To repeat, the decision in Janus reversed the decision in Abood. And what the Abood ruling did was set up a clear distinction between requiring workers to pay “fair share” fees, for the costs incurred by the union (to engage in collective bargaining, and to administer contracts), versus requiring workers to pay dues to the union to fund the transmission of political speech. This “speech” can include political activities in which the union is involved, and as far as the First Amendment is concerned, it amounts to petitioning, and, some would argue, lobbying. Under Abood, public sector employees could be compelled to pay for collective bargaining costs, but not to support the union's political speech (and any lobbying efforts it might be undertaking).
     In my opinion, Abood v. Detroit Board of Education was a wise ruling, and Janus v. A.F.S.C.M.E. was not; because the Janus decision shatters the distinction between collective bargaining costs, versus costs of political speech indirectly associated with bargaining. While it is true that collective bargaining by public sector unions is innately political activity, there are arguably some “benefits” of union negotiation which cannot logistically be refused or avoided by employees (unionized or not). Specifically, the expenses incurred by the union for engaging in collective bargaining on behalf of employees to secure and administer contracts which affect the quality of safety and health which are enjoyed equally by unionized and non-unionized employees who work at the same workplace.
     This is the so-called “free-rider problem” which many union supporters criticize; a situation in which employees who don't want to join a union, are given the benefits of collective bargaining, without being required to pay for them. To repeat, they don't think that those things actually help or benefit them; but you don't like that word, then let's just say “results”. But they might just be saying that the union doesn't help them, because they don't want to pay for it, or because they don't see how certain results of negotiation are unavoidable.
     And if they're unavoidable, then the decision in Abood was appropriate, and shouldn't have been overturned, because, as a result of Abood, for the last 41 years, public sector employees have been expected to pay “fair share” fees to compensate the union for the expenses it incurred in negotiating for those benefits.
     At worst, Janus was all wrong. At best, it solved half the problem, while allowing another problem to continue existing, and also created a new problem. What I mean by this, is that, while it was good to stop requiring public sector workers to pay to support the political speech of their union, but it was unwise to stop compelling non-unionized employees to pay fair share fees. That's because the union, as a majority union, cannot help but provide non-unionized workers with the results of the collective bargaining that the union has already engaged in on behalf of all workers at the workplace.
     The Wagner Act – the National Labor Relations Act of 1935 – requires the majority union to represent all workers in negotiations. This extends a right to private sector workers in a legal manner, what was already afforded to them by reality and reason; that is, the obligation to accept certain results of collective bargaining (like the workplace safety and health conditions they deal with every day), and to pay for it responsibly on a fee-for-service, user-fee -type model.
     The Wagner Act obligates the majority union to represent all workers. It sounds great, until you realize that it has to represent even the ones who don't pay dues, or that it has to represent people who don't want to be represented. Which could be because they hate unions, or it could be because they think the union doesn't do enough for them.
     The Wagner Act creates the free rider problem (for many, though not all, private sector workers), because it obligates the union receiving the majority vote to represent all employees (that is, all members of the collective bargaining unit, which is usually all workers at the workplace). In the private sector, the now 83-year-old Wagner Act created the free-rider problem, while Right-to-Work laws enable that problem to continue. Meanwhile, in the public sector, New York Mayor Fiorello LaGuardia's 1958 “Little Wagner Act” - which allowed city worker unions to organize – enacted Wagner Act -type majority unionism for public workers (and inspired similar reforms across the country), while the Janus decision enable that problem to continue.
     This is what I mean by public policy on collective bargaining being two-faced.

     If you think about it, the Janus decision, Right-to-Work laws, and the Wagner Act all solve half of the problem, while creating another. Right-to-Work laws and the Janus decision are symptoms of the free rider problem which the Wagner Act created in the first place. If Right-to-Work laws are a Band-Aid on the problem, then the Janus decision is like replacing the Band-Aid with a smaller Band-Aid, without the wound having gotten any smaller.
     If you look up an organization called the National Right to Work Foundation, you'll find that not only do many of these free riders not want to be free riders, some of them actually want to form their own unions. Don't you think that if people were more free to form additional unions in their workplaces, more people would join unions? Maybe then, we'd have Eisenhower-era levels of 25 to 30 percent, instead of what we have now (something like 7 to 10 percent). Sure, we'd have more so-called “yellow unions” or “business unions” (unions which are complacent with management), but we'd have more radical unions too; and also a higher number of both unions, and of dues-paying union members.
     In an article entitled “When Non-Members in a Members-Only Non-Majority Union (MONMU) Want Weingarten Rights: How High Will the Blue Eagle Fly?”, researcher C. N. o'Brien explained that, according to labor law scholar and professor Charles Morris, 5 U.S. Code S 7114 (on the representation rights and duties of unions) does not mean to make a union's representation “exclusive” in the strictest sense possible, as many people assume.
     In Section 5a of 5 U.S. Code S 7114, it states that the rights of an exclusive union representative shall not preclude employees from “being represented by an attorney or representative other than the exclusive representative of the employee's own choosing, in any grievance or appeal action”. According to Morris, the duty to bargain with representatives of employees is not limited to exclusive majority unions.
     That would mean that management would be obligated to bargain with an exclusive bargaining representative of workers, not just the exclusive bargaining representative of workers. Which means it has to bargain with any and all bargaining representatives authorized to represent workers, as long as it is exclusive. This begs the question: What does “exclusive” mean in the context of this law? Does exclusive mean that the bargaining unit is the sole representative of workers in the union; or does exclusive mean that the bargaining unit's membership is exclusive, and it is funded solely by those workers who agree to support it? Professor Charles Morris and I hope that it's the latter.
     This practice of allowing two or more unions to exist in the same workplace or bargaining unit is referred to dual unionism, minority unionism, and members-only unionism. This type of practice is a common arrangement in Japan, and in my opinion, it stands a much better chance of achieving volunteerism, competition, and just rewards for honest efforts - on the part of the union and the employee alike - than what either the Democrats or the Republicans are proposing on union law.

     Until we consider amending or repealing the Taft-Hartley Act and the Wagner Act, there will be no serious discussion of protecting workers' rights. Those rights include the right to engage in concerted activity in the workplace, to unionize, to prompt negotiation (with or without a majority of workers' support), and to engage in strikes, boycotts, solidarity actions, and many types of ordinary, voluntary activities of private sector unions which have no reason to be illegal.
     That is how we achieve the general strike; by legalizing the general strike. By repealing the Taft-Hartley Act's prohibitions on solidarity actions; secondary boycotts, solidarity strikes, secondary picketing, and even wildcat strikes. Additionally, by legalizing cooperation between various organizations engaged in boycotts and strike actions; not only unions, but cooperatives, credit unions, public interest organizations, consumer interest organizations, non-profits and charities, etc..
     While the rights of public sector workers are important, there are only 22 million of them, and the rights of some 90 million private sector workers matter too. That's why we shouldn't let the public sector Janus decision distract us from making progress with private sector unions. Fortunately, solidarity actions will be easier to do in the private sector than in the public sector, especially while anti-union administrations are in power.
     Focused cooperation between unions is less politicized in the private sector than in the public sector, because it doesn't affect public policy. Cooperation between private sector unions is therefore less controversial, because it doesn't affect as many people's lives, nor the basic way society is run. Avoiding the politicization which cooperation between public sector unions entails, will help avoid the costs associated with standing idly by while anti-union governors and presidents use the legitimate political process to get away with firing large numbers of government employees, and with appointing anti-union officials to the National Labor Relations Board.
     However, boycotts are not possible until we can fully boycott companies we don't like. Not just by refraining from buying from them, but by stopping the flow of our tax money to fund the easy-credit loans, financial and legal protections, privileges, subsidies, and bailouts, that help them start their businesses, keep them afloat, and rescue them after they make bad decisions.
     In addition to being legal in the first place, and full so as to preclude subsidization, another important step is to make larger, wider, and more interconnected boycotts possible. This can be done by urging divestment from business alliances which disguise themselves as Chambers of Commerce, and encouraging them to instead join into independent business alliances. Especially into business alliances which unite partner firms on the basis of a common interest in cooperative management, environmental conservation or other ecological purposes, sustainable improvement, and non-discrimination against vulnerable members of society.
     Encouraging firms to join into independent business alliances, and into networks thereof, will increase the level of cooperation between owners and workers who share similar visions of a free and fair society. This will do wonders to align the interests of workers and management, leading to reduced demand for government to negotiate their disputes for them, and potentially to a significant increase in the number of firms running on cooperative models, and as E.L.M.F.s (egalitarian labor-managed firms).
     As long as we have a market economy; then cooperative enterprises; employee stock ownership plans, freelancers' unions; and full, legal, viable boycotts; can all help play a part in supplementing efforts to recognize workers' rights which focus on activity in which unions are directly involved.
Recognizing that workers' rights need to be augmented, and making it legal and possible for a more broad cooperation to occur among pro-worker causes in the private sector, will help reduce antipathy towards unions. So will amending the Wagner Act to make M.O.N.M.U.s (Members-Only Non-Majority Unions) more common.
     Maybe when M.O.N.M.U.s are more common, a single union could charge fair share fees for negotiating on the safety and health conditions that affect the whole workplace; while multiple unions could negotiate for wages and benefits, but solely for their own members; and union political speech not directly related to the services it provides, is paid for on a purely voluntary basis, after the worker receives his money.



Originally Written on July 28th, 2018
Delivered on July 28th, 2018
Edited and Expanded on July 29th and 30th, and August 1st, 2018

Originally Published on July 30th, 2018




"Janus Decision Reveals Two-Faced Nature of Collective Bargaining Law"

(A new article with the same title as another article on the same topic from June 2018.
Re-written for the 2018 Bughouse Square Debates, held in Chicago on July 28th, 2018)



The original article on which this speech was based, can be read at:

1 comment:

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