Besieged American Unions Face New Conservative Legal War
(Bloomberg) -- On the morning of June 27, anti-union advocates scored a victory they’d sought for decades: A groundbreaking U.S. Supreme Court ruling siding with an Illinois government employee, Mark Janus, who claimed a First Amendment right not to pay fees to the union that represented him.
Within hours after the high court’s Republican majority applied Janus’s argument to all government workers, a conservative advocacy group called the Buckeye Institute sued on behalf of an Ohio teacher named Jade Thompson. Not a union member, Thompson argued she should have the right to refuse union representation entirely.
Building on the Janus case—which like Thompson was facilitated by anti-union organizations—a victory in her case or others like it filed this summer could lead to another high court ruling that would further destabilize the embattled U.S. labor movement.
Under the “exclusive representation” system that governs employment by the federal government and most states, if the majority of a workforce chooses to unionize, the union they pick has the right and responsibility to represent everybody in that workforce, whether they are a union member or not. Employees who choose not to join are entitled to fair representation by the union, including handling grievances and negotiations with management. Many states had allowed unions to fund their representation work by charging all non-members a fee, but under the Janus ruling, those mandatory fees are now illegal throughout the public sector.
Anti-union groups want the Supreme Court— which if Brett Kavanaugh is confirmed will have its most solidly conservative majority in decades—to go even further.
The lawsuit filed by Thompson (the wife of a Republican state legislator) in Columbus, Ohio was followed by matching litigation in Alaska, California, Minnesota, Maine and Maryland. In her complaint, Thompson argued that designating a union as the representative of workers who haven’t chosen to be union members violates their right to free speech and association under the First Amendment. If the courts agree, exclusive representation could eventually be replaced with a system where a union can only negotiate on behalf of workers who affirmatively decide to join it. Co-workers doing the same jobs could form competing groups to negotiate separate deals with the same boss, or hammer out their own individual contracts.
Union leaders warn that’s a recipe for favoritism, where employers will seek to divide and conquer employees. If groups of workers are subject to separate contracts, they could be coerced into dumping whichever union their employer didn’t like, unions say. Letting management negotiate separate deals would foster a “Lord of the Flies-Game of Thrones kind of environment,” said Randi Weingarten, president of the 1.7 million member American Federation of Teachers. “And that is what the right-wing wants.”
Some conservatives label their effort as a boon to labor, one that will help them adapt to a post-Janus world. They contend unions should welcome policies that would release them from providing now-free services to people who refuse to join. Ending exclusive representation “gives unions the ability to say ‘goodbye’ to people not paying them, and public employees the chance to say ‘no thanks’ to unwanted representation,” said Vincent Vernuccio, a senior fellow at the Michigan-based Mackinac Center for Public Policy, a conservative advocacy group.
Vernuccio, who served on President Donald Trump’s labor transition team, has previously testified on behalf of proposed state laws to do away with exclusive representation.
That cause received a boost in Associate Justice Samuel Alito’s 5-4 majority opinion in Janus. Alito—appointed to the court by President George W. Bush—wrote in a ruling that was otherwise about fees that exclusive representation “substantially restricts the non-members’ rights” in a way that “would not be tolerated in other contexts.” That language, though an aside, “is all but an invitation from the court for a challenge to this policy,” argued Buckeye Institute President Robert Alt, who represents the plaintiffs in three of the lawsuits seeking to block exclusive representation. “It’s the flip side of the Janus coin.”
Unions argue any claim that anti-labor forces are trying to help them save money is at best a cynical ploy, one meant to cover for an accelerating, long-term effort to destroy organized labor in America.
Both the Buckeye Institute and the Mackinac Center are affiliates of the State Policy Network (SPN), a conservative non-profit which has circulated model legislation and talking points on proposals including ending exclusive representation. These are aimed at helping lawmakers “free themselves and union members in their state from the undue influence of government unions,” according to documents obtained by the Center for Media and Democracy.
Buckeye, Mackinac and SPN have all received funds from Donors Trust, a donor-advised group which has received millions of dollars from a charity backed by conservative billionaire Charles Koch, or from Donors Trust-affiliate Donors Capital Fund. SPN Vice President Carrie Conko said in an email that the group helps “disseminate best practices” on such issues as “worker freedom,” but that the think-tanks in its network are “fiercely independent.” State and local governments, Conko argued, “have been financially crippled by the special interest politics that comes when government union leaders sit across the negotiating table from the politicians they help to elect.”
The unions label such claims specious, given the amount of corporate money flowing through political campaigns. “This is just part of their strategy to not just hurt us,” said Lee Saunders, president of the 1.6 million member American Federation of State, County & Municipal Employees, but to “to take us out of the ballgame completely.”
But first, anti-union groups must overcome precedent. In 1984, the high court ruled the government has a legitimate interest in dealing with a single organization on workplace issues, and that the First Amendment doesn’t mandate that the government take into consideration the views of dissenting employees.
In August, a panel of the U.S. Court of Appeals in St. Louis cited that ruling as a reason to reject a challenge to exclusive representation brought by the National Right to Work Legal Defense Foundation, a conservative group. After noting the language in the Janus ruling, one of the appeals court judges wrote that the court was bound to follow the 1984 ruling “even if a later decision arguably undermines some of its reasoning.”
Conservatives aren’t the only ones to object to aspects of the current system. Police and firefighter unions backed a Rhode Island bill signed into law days after the Janus ruling that lets them refuse to handle non-members’ grievances, and some unions in Massachusetts have urged similar legislation there. Meanwhile, some labor activists argue that competition among different unions in the same workplace could force leaders to be more accountable to workers and more aggressive on their behalf—as long as management is prevented from manipulating those organizations.
“The unions are going to be a lot more responsive if their members can go to another union,” said Rutgers University law professor James Pope, a local union officer and former labor attorney.
But those views appear to be in the minority among labor advicates. Leaders of the largest national public sector unions said they have no interest in denying services to the non-members they’re now representing for free. “Collective bargaining doesn’t work without the collective part,” said Lily Eskelsen Garcia, president of the 3 million member National Education Association. “If they can take out the collective part, then they can destroy the power.”
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