According to the Bureau of Labor Statistics, the percentage
of unionized wage and salary workers in the U.S. dropped to 11.1 percent in
2014 from 20.1 percent in 1983. The unionization rate in the private sector
stands at an abysmal 6.6 percent. The public sector, by contrast, boasts a
unionization rate of 35.7 percent.
The Republican-dominated U.S. Supreme when it reconvenes
will be considering the case of Friedrichs v. California Teachers, which poses
what some observers have called an “existential threat” to public unions and by
implication to the entire US labor movement. At issue in Friedrichs is the
right of public sector unions to collect limited “fair-share” fees in lieu of
full formal dues from non-union workers to defray the costs of collective
bargaining that benefits all employees. The aim of the case is the crippling of
public sector unions, both as bargaining agents for government workers and as
sources of political funding and donations for liberal political candidates and
campaigns.
A decision against the teachers association would have the
potential to bankrupt government employee unions and turn the nation’s entire
public sector into one enormous “right-to-work” jurisdiction. Under current
law, no one can be forced to join a union, even one that has been elected by a
majority of workers to negotiate on their behalf. In non-right-to-work states,
however, unions nonetheless can collect mandatory fair-share fees from workers
who want to keep their jobs without becoming union members. Typically,
dissenting nonunion workers are billed for full regular union dues, but they
have the right to “opt out” of making full payments, remitting instead only the
fair-share fees that are needed to help the union meet expenses for collective
bargaining. Fair-share fees (also called “agency” fees in reference to the
union’s status as the sole agent authorized to act on bargaining) cannot be
used to pay for other union expenses, such as contributions to political
campaigns and most lobbying.
In a 1977 decision dealing with government unions, Abood v.
Detroit Board of Educatio, the justices upheld the constitutionality of
fair-share fee systems. But the Roberts court has steadily chipped away at the
Abood rule. Starting in 2012 with its opinion in Knox v. SEIU and continuing
with its 2014 decision in Harris v. Quinn, the court’s five Republican
appointees have emphasized that the payment of union dues by public employees
is a form of political speech subject to the constraints of the First Amendment
because public unions negotiate contracts with governmental entities and such
contracts by definition affect public policies and the spending of taxpayer
money. The First Amendment, they reason (and here is where the twist sets in),
protects not only the affirmative right to speak but also the passive right not
to be compelled to speak or compelled to endorse the offending speech or acts
of other people or groups. Requiring dissenting employees to pay fees to a
union they don’t want to join, the analysis continues, amounts to such
compelled speech in violation of the First Amendment.
The Supreme Court under the leadership of Chief Justice John
Roberts has passed a number of anti-worker judgements. As a study published in
January by The Nation explains, it ruled for restricted gender-based
discrimination and class-action lawsuits against corporations; curbed age
discrimination claims; limited the availability of overtime pay; redefined the
term “supervisor” to allow employers to avoid liability for harassment; and
made it more difficult for employees to prosecute workplace retaliation
grievances.
In the aftermath of Wisconsin’s Governor and now Republican
presidential hopeful, Scott Walker’s 2011 assault on public unions and the
state’s subsequent implementation of right-to-work policies, the declines in
public union membership and dues collected have been enormous in Wisconsin,
according to The Washington Examiner. The Madison local of the American
Federation of State County and Municipal Employees has lost 18,000 of its
previous 32,000 members and has seen its annual revenue fall from $10 million
to $5.5 million.
The lesson is clear: Kill the fair-share regime and you kill
public sector unions. Kill public sector unions and you kill off the labor
movement as a whole.
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