Today, the final chance to head off an almost-certain body-blow to every public sector union in the country, slipped through our fingers. Please abide the somewhat technical explanation up top; I will explain as briefly as I can before giving additional context and analysis. What I will argue is that what we are witnessing could either be the beginning of the end of the US labor movement, its denouement, if you will, or the beginning of a brand new, radicalized chapter in our country’s labor history, reinvigorating it and tying it closer to the needs of working-class Americans. Now more than ever, that outcome depends on each and every one of us. Let me explain.
This morning the Supreme Court issued its orders of certiorari for the 2000-plus cases that piled up over the summer break, and according to SCOTUS blog, the most significant of these by far was Janus v. American Federation of State, Municipal and County Employees, a challenge to the “agency fees” paid by public-sector employees who are not members of the union but are still guaranteed, under the National Labor Relations Act, full representation by the union and the full benefits of collective bargaining. Something like a third of public sector union dues are made up of these fees, and, moreover, taking them away would make paying dues mandatory for services that the union is already required by the NLRA to provide, introducing a significant “free-rider problem.”
The Supreme Court had previously ruled, in the 1976 case Abood v. Detroit Board of Education (Abood), that the potential free-rider problem absent agency fees was so significant as to supersede any first amendment issues that might arise from a public sector employee being forced to help fund a union that was bargaining on their behalf with a government agency. That precedent has remained in place, even as 28 so-called “right to work” states have so far passed their own laws banning agency fees from private sector and, at times, public sector contracts. The Janus case will almost certainly make the other 22 states, including some of the biggest like New York and California with the largest public sector unions, “right to work”.
The attorneys for Mark Janus, the AFSCME agency fee-payer and public sector employee from Illinois, mainly hail from the National Right to Work [for peanuts] Foundation. Their argument is that even though agency fees can only be used for non-political bargaining and representation purposes, per Abood, everything a public sector union does is inherently political since it pertains to government policy. He’s technically right. So is AFSCME, who argues that the bargaining and representation they do are not motivated by partisan politics and benefit their members and agency fee payers alike, and that they would not be able to do so effectively without a guarantee against free-riding. This is a great example of a court case that will be ruled not on case law or constitutional fealty but rather on pure politics. It was a political decision to keep agency fees in 1976 under Abood, and it is going to be a political decision to eliminate them now.
The politics are even more apparent when you consider that this same question was already taken up under the Roberts court when Scalia was still alive, in the case of Friedrichs v. California Teachers Association. The unions were girding for the loss then, but were saved by Scalia’s sudden death, causing the court to split 4-4 and revert to the lower court decision, which upheld Abood. I would argue that the ideological makeup of the court on this issue serves as a pretty good proxy for the organizational strength of the economic left in general at any given moment, and our failure to capitalize in 2016 shows that we (the left) are all still losing ground on the political front, even as the public sector unions and their members pay the most immediate price.
The fact is that unions are fundamental to the overall political health of the economic left in this country, and their density has been declining sharply since around 1973-6, when the neoliberal political consensus become the class project of both major parties and much of the global political order, replacing the New Deal consensus. The graph on the right is what the union density in this country has looked like over the past 50 years, courtesy of Doug Henwood, using BLS statistics from their 2014 report on union density.
As you can see, the public sector has become, since the 80’s, one of the last bastions of strength for an otherwise deeply declining US labor movement. The total decline (the blue line) can also explain the rightward shift of the Supreme court from 1976 to now. And the right to agency fees, which have been steadily abolished in the private sector by right-to-work legislation, is one of the main explanations for this total decline, as are sympathetic Democratic municipal, county and state governments in many parts of the country who see unions as having a vital role to play in the preservation of the middle class. Without Abood, and agency fee, that green line would have looked a lot more like the red one, and the Supreme Court would have slid even further rightward than it already has.
This is an all-hands on deck moment, is what I’m trying to argue. Gorsuch will almost certainly side with his conservative colleagues on the bench. They will issue a ruling, probably in June, and their ruling could go into effect as late as July. I would highly recommend the following:
- Become a voluntary provisional member of a public sector union that represents your government employees. AFSCME DC 37 in NYC is setting up a system whereby the general public can contribute.
- Call your local elected officials and say that you oppose this likely decision and support legislation enshrining access to public sector new-employee orientations, bulletin boards, meeting spaces and employee information, member and non. This will help public sector unions transition more from an accretion-model to an organizing model. That transition could in the end be a positive thing for the labor movement as a whole, but we need to batton down the hatches.
- Support progressive economic policies that actually distribute wealth to poor people. The $15 minimum wage in NYC actually gave an automatic raise to tens of thousands of city workers. Single payer and Liz Warren and Bernie’s bill giving us the right to reimport drugs from Canada would each significantly cut governments’ health care costs and make it easier for unions to negotiate with them across the table. These are just examples.
- Don’t forget that public sector employees are disproportionately females of color, or that AAs have the highest unionization rate of 13.6%, compared with 10.8 percent for Whites, 9.8 percent for Asians, and 9.4 percent for Hispanics. So this is not some white working class pet issue. Quite the opposite actually.