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

Click the following link to read an speech for the 2018 Bughouse Debates,

which was based on this article:

http://aquarianagrarian.blogspot.com/2018/07/janus-decision-reveals-two-faced-nature.html

20 Goals for Labortarians: Crafting a Libertarian Policy on Unions

1. Craft a free labor policy.

2. Less government, more unions.

3. End Right to Work laws.

4. Liberalize professional licensing.

5. Fix the free rider problem.

6. Free movement and integrated markets.

7. End unions' monopolies on negotiation.

8. Protect concerted activity.

9. Continue to require bargaining.

10. Ensure the right to strike.

11. Legalize illegal union activities.

12. Make full boycott possible.

13. Keep divestment legal.

14. Unionize all walks of life.

15. Establish free union elections.

16. Free-market anti-capitalism.

17. End slavery, domination, and dominion.

18. Counter the rhetoric of self-ownership.

19. Free association and non-discrimination.

20. Promote acceptance and tolerance.

          1. CRAFT A FREE LABOR POLICY: Advance a labor policy which celebrates the contributions that the organized labor movement has made to advancing human liberty - and which is in keeping with the Libertarian Party platform, strict-constructionist and originalist interpretations of the Constitution, and frameworks to ensure free and fair markets - by consistently supporting voluntary collective bargaining activities over compulsion, hierarchy, and state interference in the affairs of organized labor.

          2. LESS GOVERNMENT, MORE UNIONS: Retain the portion of the 1935 National Labor Relations Act (N.L.R.A. / Wagner Act) which promotes the practice and procedure of collective bargaining, but also promote the radical privatization of government services wherever possible and prudent, and demand that most or all necessary government activities be performed by non-state actors. Increase overall union membership in the United States.

          3. END RIGHT TO WORK LAWS: Support the freedom of unions to exercise their right to become party to contracts with enterprises, by opposing efforts to pass Right to Work laws and amendments, in all jurisdictions and at all levels of government. Call on state governors to nullify and repeal such laws, and state and federal courts to rule them unconstitutional, due to their prohibition of union-shop and closed-shop arrangements, union security agreements which are perfectly free and voluntary (although they may have some undesirable effects). Repeal the portion of the 1947 Taft-Hartley Act which prohibits closed-shop union security agreements.

          4. LIBERALIZE PROFESSIONAL LICENSING: Make Right to Work laws unnecessary, by demanding an alternative method to preventing the domination of professions within given states by the set of unionized professionals already employed within them. Demand the liberalization of professional licensing laws, in order to accommodate independent contractors and those seeking to form unions.

          5. FIX THE FREE RIDER PROBLEM: Ensure that workers everywhere are free to “not consent and refuse the benefits” of union negotiation. Leave all employees free to refuse to pay dues to unions, but only on the condition that the employee refuse all benefits of union negotiation which he can feasibly refuse (i.e., not physical workplace safety and health conditions). Consider liability waivers as a possible solution to the safety and health free-rider problems.

          6. FREE MOVEMENT & INTEGRATED MARKETS: Fight globalism and ultranationalism, while supporting globalization, integration and interconnectedness of markets, and the free movement of labor and capital (including the freedom of locomotion for travelers and workers alike). Fight to liberalize immigration laws; end immigration quotas; lower barriers to trade; decrease tariffs, duties, and imposts; and oppose efforts of established unions to lobby for legal measures that unfairly protect or favor domestic labor. Use education to combat the stigmatization of legal and undocumented immigration.

          7. END UNIONS' MONOPOLIES ON NEGOTIATION: End compulsory unionism in the private sector, and end the rights of unions to monopolize the representation of workers in negotiation with management. Repeal the section of the Wagner Act which mandates that there is to be one exclusive bargaining representative for a unit of employees. Spread awareness of, and normalize, the practices of members-only collective bargaining, and dual and minority unionism (the presence of two or more active unions in a single workplace). Increase the diversity of the types of union security agreements which are practiced in the United States.

          8. PROTECT CONCERTED ACTIVITY: Retain the Wagner Act's provisions that require the federal government to protect the right of union and non-union employees to engage in concerted activity, and retain the protection for discussing wages. Protect these rights, as well as the right to form a union, in all jurisdictions, and at all levels of government.

          9. CONTINUE TO REQUIRE BARGAINING: Retain the Wagner Act's requirement that employers must negotiate with employees, on the grounds that a fair market is not possible unless the buyer and seller of labor have equal say in determining the price at which the labor is to be sold.

          10. ENSURE THE RIGHT TO STRIKE: Abolish the National Labor Relations Board, and repeal the provision of the Taft-Hartley Act which prohibits wildcat strikes. No union should have to request permission from a government bureau in order to go on strike, nor should any segment of a workplace or work force be denied the right to strike without the approval of a union leader.

          11. LEGALIZE ILLEGAL UNION ACTIVITIES: Demand the legalization of prohibited union activities wherever they could be engaged in voluntarily. Repeal the portions of the Taft-Hartley Act which prohibit secondary strikes, secondary boycotts, secondary and mass picketing, jurisdictional strikes, and monetary donations from unions to federal political campaigns.

          12. MAKE FULL BOYCOTT POSSIBLE: Fight for the full right of workers and taxpayers to engage in full boycott of enterprises and unions with which they do not wish to associate. Allow taxpayers to withhold their taxes from governments that would spend it to enrich their favored business cronies and favored unions. Call for tax strikes, which demand either the abolition of the entire corporate welfare state, or that individual citizens be free to decide which programs they will pay for and which ones they will not.

          13. KEEP DIVESTMENT LEGAL: In addition to supporting the full rights to engage in strikes and boycotts, fight for the right to engage in divestment campaigns. Encourage enterprises to end their membership in lobbying agencies that disguise themselves as chambers of commerce, and to instead join independent business alliances that promote fair treatment for workers. Keep divestment legal, whether against enterprises, unions, or even governments.

          14. UNIONIZE ALL WALKS OF LIFE: Fight for the rights of freelancers, independent contractors, free agents, unemployed people, welfare recipients, homeless people, ex-convicts, non-violent black market laborers, tenants, open-source workers and peer-to-peer process contributors, and people of all professions. to form unions. Additionally, to demand negotiation with their employers, and to resist state control, exploitation, hierarchy, and bossism.

          15. ESTABLISH FREE UNION ELECTIONS: Ensure that union members may vote in union elections, and that non-dues-paying members and dues-paying members alike are free to abstain from voting. Advocate for the freedom of union members to hold elections featuring voter privity, with results visible and subject to review by all members of the union(s) and workplace(s) involved.

          16. FREE-MARKET ANTI-CAPITALISM: Reject the Libertarian Party's endorsement of private property as a core principle, and oppose any attempts to have the party list “capitalism” or “fiscal conservatism” among its guiding economic principles, Promote the idea that markets must be completely immune from price distortions and undue limitations and inhibitions on markets (which are caused by the state and its cronies, their hoarding, and their participation in the capitalist mode of production), in order to be both fair and truly free. Combat untrue anti-socialist and anti-communist propaganda, and ignorance about left-wing economics, through education and peaceful civil discourse. Oppose misinterpretation of the Non-Aggression Principle that excuses or ignores intimidation, exploitation, and economic pressures that coerce people and make their decisions limited and effectively involuntary. Oppose cutthroat competition, monopolistic competition, and competition to lower prices that neglects the right of workers to receive sufficient compensation for their effort.

          17. END SLAVERY, DOMINATION, & DOMINION: Oppose the extension of markets to the realms of “living capital”; i.e., human labor and work, and other living things. Empower consumers to resist the commodification of labor, man, and nature; calling for such market activities to cease. Abolish the markets for exclusively held landed property, the product of human labor, sex work under economic pressure and exploitation, toxic chemicals and poisons that kill when used properly, and perhaps the markets for human organs and endangered animal species. Support the rights of human beings, living or dead, to resist being owned, kept, domesticated, overworked, denied the right to negotiate what amounts to the full product of their labor, and required, pressured, or threatened into performing labors and actions against their will.

          18. COUNTER THE RHETORIC OF SELF-OWNERSHIP: Oppose the characterization of liberty as “self-ownership”, in order to resist the perception of the human body and its efforts as things – tangible pieces of property - which can or should be owned, which gives the impression of tangibility, suggesting that the body can or should be owned.

         19. FREE ASSOCIATION & NON-DISCRIMINATION: Oppose discrimination and segregation in the public sector, and oppose discriminatory behavior in all ostensibly private firms which receive any forms of taxpayer funded subsidies and/or services, and/or are directly involved in interstate commerce. In the social sphere, and on residential properties, support the full freedom of, to, and from association.

          20. PROMOTE ACCEPTANCE & TOLERANCE: Fight reactionaryism, religiously motivated bigotry, anti-Semitism, Judeophobia, Islamophobia, chauvinism, misogyny, homophobia, transphobia, classism, ageism, ableism, lookism, Social Darwinism, cultural monism and assimilationism, and predjuice against people of every race, color, and creed. Use education to combat ignorance of sociology, human needs, intersectionality theory, institutional privileges, commonly agreed upon parental responsibilities, the stigmatization of mental disorders (especially those that keep people from working), and the stigmatization of homelessness, poverty, and welfare receipt, especially in Libertarian circles.

Written on October 30th, 2017