Magazine article Commonweal

Labor's Existential Crisis: JANUS AND THE FUTURE OF COLLECTIVE BARGAINING

Magazine article Commonweal

Labor's Existential Crisis: JANUS AND THE FUTURE OF COLLECTIVE BARGAINING

Article excerpt

On June 27, by a 5-4 majority, the Supreme Court in Janus v. American Federation of State, County, and Municipal Employees ruled as unconstitutional laws in twenty-two states and the District of Columbia that gave public-employee unions the right to collect fees from the workers they represent. The majority opinion, authored by Justice Samuel Alito, held that collective bargaining in the public sector was a fundamentally political act, and that no workers could be compelled to pay for the benefits they receive from collective bargaining without infringing on their First Amendment rights to free speech and free association.

The full significance of the decision has eluded most commentators. Many have characterized it as a blow to the finances of public-employee unions whose members account for nearly one-half of the U.S. labor movement, undercutting one of the Democratic Party's strongest institutional allies. And it is. But more ominously, at a time when inequality is surging and the economy is changing in ways that continue to weaken worker bargaining power, the court dismantled what has been a cornerstone of U.S. labor policy for decades. Janus puts all the nation's public-sector workers on a "right-to-work" basis, endangering the very concept of collective bargaining.

Even before the Janus decision, no public-sector workers could be compelled to pay union dues. At most, they could be required--if state laws allowed it--to abide by contracts approved by the majority of their coworkers that stipulated that all workers covered by such contracts share the costs of winning and administering them. These "agency fees" were not equivalent to union dues and could not be used for electioneering. Under the provisions of the Janus decision, governments must assume that their employees prefer to be free riders unless they indicate otherwise. States must now require that workers opt in to support the union.

The devastating effects of the decision are already being felt. Public-employee unions are now cutting their budgets, laying off staff, and putting once robust campaigns like the fast-food workers' Fight for $15 on hold. The nation's largest union, the National Education Association (NEA), which represents more than three million teachers, estimates that it will lose 370,000 members over the next two years. The American Federation of Teachers (AFT) and the Service Employees International Union (SEIU) also expect significant membership losses.

Janus v. AFSCME was no fluke. It was more than forty years in the making. The rise of public-sector unions in the 1960s caught the anti-union movement by surprise. They had been focused on passing right-to-work laws at the state level and fighting labor's effort to amend the antiunion Taft-Hartley Act in Congress. It was not until the early 1970s that the National Right to Work Committee realized the threat posed by the unionization of millions of teachers, sanitation workers, social workers, and other government employees.

As anti-unionists turned their attention belatedly to the public sector, Sylvester Petro, a libertarian law professor who rubbed shoulders with Ludwig von Mises, Friedrich A. Hayek, and Milton Friedman at Mont Pelerin Society meetings, helped anti-union forces devise their legal strategy to attack public-sector unions. Petro was a lifelong opponent of collective bargaining--he called it "compulsory bargaining"--and believed that it infringed on the individual rights of workers to decide for themselves what conditions they were willing to accept at work. In The Labor Policy of the Free Society, published in 1957, he called for rolling back the 1935 Wagner Act, which had granted collective bargaining rights to a broad swath of private-sector workers.

Petro adapted to the rise of public-sector unions by reworking his old arguments against "compulsory" bargaining. Instead of attacking bargaining per se, he contended that public-sector unions were unavoidably political vehicles and that any laws that allowed workers to be compelled to pay for union activity undermined the First Amendment. …

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