On Thursday, the Supreme Court agreed to hear Janus vs. AFSCME, the case that will likely turn the entire public sector labor movement into a “right-to-work” zone. Like a lazy Hollywood remake, the case has all the big money behind it that last year’s Friedrichs v. CTA did, with none of the creativity.
In Friedrichs, the plaintiffs argued that interactions between public sector unions and government employers are inherently political. Therefore, the argument went, mandatory agency fees to reimburse the union for the expenses of representation and bargaining were forced political speech, violating employees’ purported First Amendment right to not pay dues.
The case ended in a 4-4 deadlock in March 2016, following the death of Justice Antonin Scalia, who had appeared poised to vote against the unions’ interests.
Much like Friedrichs, the Janus case has rocketed through the federal courts. The National Right to Work Foundation, which represents the plaintiffs, petitioned the Supreme Court to hear the case in early June. All briefs will likely be submitted by mid-January 2018, meaning SCOTUS could hold hearings almost exactly a year to the date that the Court last heard the same arguments.
The defendants may argue for procedural delays, which could potentially kick the decision into the following court term in 2018-2019. And it’s possible that in the meantime Justice Anthony Kennedy could die of a heart attack, or Sam Alito could forget to look both ways while crossing First St. and get run over by a bus. And the Democrats might take back the Senate next year, preventing the Trump administration from naming any more conservatives to the Court.
That’s the kind of magical thinking we’re left with, because the conservative majority on the Supreme Court is clearly determined to tilt the power of the country in favor of big business and against unions for at least a generation, and they care little about how just or fair their decisions appear to the public.
“Right to work” laws, currently on the books in 27 states, strip the requirement that union members pay union dues. Unions claim this creates a “free rider” problem, allowing workers to enjoy the benefits of union membership without contributing a dime. This deprives unions of crucial funding, but also—and this is no small consideration for the right-wing—every union family that drops their membership becomes one less door that union members can knock come election season.
Most national unions have been preparing for this eventuality since the first time the Roberts court took up the issue of public sector union fees in 2014’s Harris Vs. Quinn case. (If you’re keeping score, yes, the conservative justices on the Supreme Court have spent three years in a row trying to break the backs of unions).
Much of this preparation has focused on making sure that unions have a shop steward in every department and that every new hire is asked by a living breathing human being to actually join the union. But, as I wrote earlier this month, the bigger threat once workers have the right to evade union fees is the direct mail and phone-banking campaign that is already being run by Koch Brother-funded “think tanks” to encourage workers to drop their union membership and “give yourself a raise.”
As I wrote then, “The slick ‘give yourself a raise’ pamphlets will do the most damage in places where members think of the union as simply a headquarters building downtown. … But where members are involved in formulating demands and participating in protest actions, they find the true value and power of being in a union. That power—the power of an active and involved membership—is what the right-wing most fears, and is doing everything in its power to stop.”
There is a certain irony in conservatives applying the First Amendment to collective bargaining, a principle that conservative jurists have studiously avoided for two centuries. If every interaction that a union has with the government is a matter of speech, then we have a stronger argument for instituting a Bill of Rights for labor to protect workers and their right to demand fair treatment on the job.
Unions are already oppressively regulated. They are told by the National Labor Relations Board whom they can picket, when they may march and what they might say on a flyer. And they face steep fines if they disobey. Workers are forced to attend endless hours of anti-union presentations before a union election with no right to respond or boycott.
If every interaction the government has with a union is a matter of political speech—as a ruling in favor of Janus would imply—unions must respond by forcefully arguing that the rules of the system have been unfairly holding workers back, violating of our rights to free speech, due process and equal protection.
[This article originally appeared at In These Times.]
The restocking of American labor union density in 39 words:
If a state or local legislature passes a law that makes exercising freedom of association (e.g., organizing a labor union) possible where it would otherwise not be possible, then, Congressional preemption of labor law falls to the First Amendment.
Federal interference (preemption) with state legislation can pop up in the least likely places (and least practical).
Headline: https://onlabor.org/thank-non-union-construction-companies-and-federal-preemption-for-those-collapsed-cranes-in-miami/
Florida wanted 140 mph resistant cranes — Congress thought 93 mph okay, years ago — judiciary thought no lives endangered (off street; none lost to previous storms); probable property damage to cranes and structures not enough to let Florida do its own thinking. No competing value somewhere else in the Constitution could save Florida from judges judging federal preemption.
Not so in every area.
A doctor on KevinMD blog griped that anti-trust laws bar doctors from combining to bargain fees with hospitals (unless employed there). I opined (no expert on the specifics) that if doctors combined to bargain with a giant like Blue Cross, then, overall market power would be sufficiently balanced — for the First Amendment to assert itself and protect doctors’ combination — disallowing not a matter of legislative choice. (I got the general idea right anyway.)
For decades now, judicial interpretation has walled out state labor legislation under federal preemption until it precludes anything the NLRA(a) even so much as arguably protects or prohibits (Garmon); all arguments resolved solely by the NLRB(b) — also almost anything that fits under the definition of the free play of economic forces affecting collective bargaining (Machinists), IOW almost anything not fitting under the definition of protected or prohibited.
Ironically, as decades of judicially discovered barriers to state intervention piled up, the number of union workers left under federal rules slid endlessly down.
Decades during which the initial intent of Congress to “encourage the practice and procedure of collective bargaining” — was been lost to growing federal ineffectiveness and state law freeze out.
https://en.wikipedia.org/wiki/National_Labor_Relations_Act_of_1935
6% labor union density in private business (the 6% able to hang on by their own natural advantages; no help from Congress) equates to 20/10 blood pressure — no difficulty diagnostically. And it starves every other healthy democratic process.
For an all day read on uninvited judicial construction activity click below (97 page PDF, very readable, half is notes and if you only want to check out Garmon and Machinists you can do pp. 70-90).
Reforming Labor Law by Reforming Labor Law Preemption Doctrine to Allow the States to Make More Labor Relations Policy by Henry H. Drummonds
http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=6305&context=lalrev
Late dean of the Washington press corps, David Broder, told a novice reporter that when he came to D.C. fifty years earlier, all the lobbyists were labor. I tell doctors that no matter what health system we originate or borrow it won’t halt the financialization and crapification of US medicine — unless we build a countervailing force, unless we restore healthy union density (for the whole country, not just doctors).
How to get (back) there in 30 words:
Constitutionally guaranteed freedom of association precludes Congress from disallowing state legislative protection of labor organizing for collective bargaining which legislation is a necessary condition for the exercise of that freedom.
“The ultimate sweetheart contract is no contract at all.”