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:
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