Last year’s U.S. Supreme Court’s decision in Janus v. AFSCME represents another in a long line of legal and legislative blows against organized labor, particularly in the public sector. The implications of that decision will reverberate far beyond the public sector however, as governmental policy and actions, along with implementation of the ongoing agenda of conservatives and the political right, continue to whittle away at union bargaining and social power. The Court overturned 41 years of legal precedent in deciding that requiring non-members to pay for the costs of representation, collective bargaining and contract enforcement infringed on their first amendment (freedom of speech) rights. In many states, collective bargaining contracts negotiated between public worker unions and public employers require non-members in the bargaining units represented to make such “fair share” or “agency fee” payments. The grounds for these payments have long been based on the fact that unions are legally bound by the duty of fair representation, a legal doctrine established by the 1975 Weingarten Supreme Court Decision, to fully represent members and non-members alike. There is a cost that unions incur in performing that duty of representation, and since non-members benefit from the representation they receive, the Court had previously agreed that, where permitted by state law, collective bargaining agreements requiring that non-members should bear their fair share of those costs were legal. Now the Court has reversed itself, based on their equating of the spending of money with freedom of speech, as in their Citizens United Decision in 2010, holding that such a public policy violates non-union members’ freedom of speech.
This equation is a legal abstraction that is far removed from reality, because in fact non-members’ right to say or communicate whatever they want regarding unions that represent them, the government, and a great many other topics, were never restricted or infringed by fair share or agency fee payments, or the collective bargaining agreements in which they are mandated. What the Court has achieved with its Janus Decision, is to bring about the same conditions in public sector labor relations nation-wide, as has prevailed in private sector labor relations in so-called “right to work” states. In both cases, since Janus, non-union members can now opt to pay nothing while enjoying the benefits of full union representation. The impact of this decision on public sector unions is likely to be considerable, with one recent academic study projecting the potential future loss of revenues to public worker unions from hundreds of thousands of non-members across the U.S. While it is true that union membership at present is rising, such increases are not likely to offset the loss of these revenues to public worker unions.
The affects of Janus in Wisconsin however are likely to be quite minimal. That is because Act 10, the state legislation enacted into law by former Governor Scott Walker and the Republican controlled Legislature in 2011, has already done far more damage to Wisconsin public worker unions than Janus by itself can ever do. The Janus Decision only prevents requiring representation payments to unions by public sector non-members; it says nothing about dues check-off, the scope of bargaining in the public sector, certification of public worker unions for collective bargaining purposes, resolution processes to contractual and appeals disputes, or the duration of time public sector collective bargaining agreements may be in force. Act 10 by comparison, not only prohibits agency fees or fair share payments, but also prohibits union dues deductions in the state’s public sector, and contains rigid restrictions on the scope of bargaining and public worker and union rights in other areas. Recent research by School for Workers faculty has gauged the damage this has wrought on four major Wisconsin public worker unions since the advent of Act 10. Individually they have lost between about 50% to well over 90% of their dues paying membership, and have been effectively decertified from most of the bargaining units where they previously held contracts. This is a grim picture indeed, and the extent of organizational damage to these unions cannot be overlooked. At the same time, Wisconsin public sector workers have suffered from wage freezes, cost shifting of benefits such as health insurance and pensions to public employees, poor working conditions and arbitrary treatment, all of which continue to the present day.
Some hard earned lessons have also emerged amidst all of this erosion of worker and union rights and standards. Some public workers and unions have learned to adapt to the harsh new conditions brought about by Act 10, and what they have learned can be of use to unions now adversely affected by Janus, and elsewhere. We list some of these lessons below.
- Replacing “bad” union leaders with “better” or more responsive union leaders is in itself insufficient. There is no substitute for rank and file involvement in all facets of union activity.
- Being proactive when it comes to internal organizing is essential; newly hired workers and non-members must be directly engaged with on a personal level; having and training an organized network of stewards and activists to accomplish this is crucial.
- Contractual negotiations where they still exist are comparatively less important than previously; meeting and conferring with management, community leaders and the public has not been restricted by Act 10, and can and must be utilized to the fullest.
- Issue organizing in workplaces and communities, including over racism, sexism, sexual harassment, and struggles among immigrant and impoverished populations can be an effective means of building alliances. This includes mass demonstrations and actions, and political organizing, especially on the local level.
- Use of professional union representatives can be limited in favor of taking union activists off the job to do union representation and organizing work. This can be both more effective, and more cost efficient at the same time.
- In some cases unions may be able to play a crucial role in training younger workers, utilizing the skills and knowledge of veteran workers under the auspices of the union.
None of these lessons are really new, and all of them can be applicable to unions beyond the public sector. But learning lessons the hard way, as public worker unions must do in Wisconsin, brings us back to our roots, and makes us better realize why workers formed unions in the first place, and the potential our unions really have.
January 2019 | By: Professor David Nack