A Union Response to the Supreme Court’s Janus Decision

(Photo by Karla Ann Cote/NurPhoto/Sipa USA via AP Images)

Union activists and supporters rally against the Janus decision in Foley Square in Manhattan on June 27, 2018.

In a long-anticipated yet troubling decision, the U.S. Supreme Court overturned its own precedent and decreed that public workers who benefit from their unions’ collective-bargaining efforts owe no obligation to financially support those efforts. Justice Elena Kagan’s blistering dissent makes a powerful argument that this decision is wrong on legal and policy grounds, but it is obvious that nothing will deter Justice Samuel Alito from his zealous crusade to weaken, if not abolish, labor unions in America. The decision is a setback not just for public service workers, but for all workers and perhaps for democracy itself. The decision will take its place alongside other misguided and overtly political Roberts Court decisions to diminish workers’ rights and elevate corporate interests.

The public policy of virtually every state affected by the decision has long declared collective bargaining to be in the public interest. Yet Alito’s decision makes little effort to hide the court majority’s hostility to the idea that workers should have the freedom to bargain with their employers. The challenge now is to construct policies consistent with the Court’s decision while still fostering state policies promoting collective bargaining and labor organization.  

The focus must be on workers and their unions. No one, not even the Supreme Court, can deprive free people of the opportunity to work together to create a better life for themselves and their communities. Workers must educate one another to build and maintain their strength and grow their unions. Anticipating the court’s decision, public service unions have embarked on massive internal educational and organizing campaigns, building the organizational strength necessary for success in a hostile political and legal climate.

Elected officials can assist this effort by making policy consistent with the original intentions of our nation’s labor laws. Because the people of these affected states have established collective bargaining as a fundamental right, public workers should be given opportunities to meet with their union representatives to learn about collective bargaining and their unions’ programs, functions, and operations. New employees should have these opportunities right away, and all employees should be provided with such opportunities on a periodic and ongoing basis. Since the decision to join the union is personal to each employee, and state laws that provide for collective bargaining favor the process of labor organization itself, supervisors and managers should be prohibited from interfering in any employee’s decision to join with their co-workers. In short, policymakers should create opportunities for workers to educate one another on the decision to join the union, free from any outside influence.

Although the Janus decision is ostensibly focused on fees paid to the union, treating the attack on unions and collective bargaining as simply a resource problem will be ineffective and lead to unintended consequences. Some academics have suggested that government employers fund the union directly rather than have employees make dues payments. They reason that the original source of union dues is the government employer anyhow, so why not cut out the middleman if everything comes out equal for all parties?

This reasoning is simple, but wildly off the mark.

Direct payments from the employer to the union are prohibited in the private sector because they compromise the independence of the union. No experienced union negotiator would want his or her management counterpart to literally control union revenue. The union must belong to the workers, and they must pay for their union so they can own it. A direct payment from the government employer will also undermine the union’s credibility with its own members. If the union makes difficult choices to settle a contract in tough fiscal times, will workers suspect it was to preserve the union’s “payoff” from the boss? Finally, there’s the political problem. Anti-tax groups and anti-worker politicians will never acknowledge the payment is “workers’ money” and will insist the funding is an inappropriate, and perhaps illegal, expenditure of taxpayers’ funds.

Here’s another idea that has been floated: require nonmembers to pay a fee when the union represents them on an individual complaint. Still another related idea would give the union the option of refusing to represent a non-member on an individual complaint. While seemingly equitable on their face, such practices will undermine the unions’ strength by dividing the workforce. A union is its members, and a union’s strength is derived from the entire workforce speaking out, member and non-member alike. By segregating workers into “us” and “them,” unions erode their status and their power. Members-only representation is a short walk away from members-only contracts, which diminish the collective power of the workforce and are inherently divisive and weak.

The only way to preserve a vibrant union is for workers themselves to want it, work for it, and pay for it. A preoccupation with resources and maneuvers to create short-term financial viability will lead to further erosion of the American labor movement, with continued negative effects on our society and our economy. When given the opportunity to get the facts free from coercion, workers willingly join and participate in their unions in overwhelming numbers. They need policymakers to help provide them with those opportunities.

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