Attacking Unions by Going after Members and Money Continues Everywhere

Union activists and supporters rally against the Supreme Court’s ruling in the Janus v. AFSCME case.
(Photo: Drew Angerer/Getty Images)

New Orleans       Back in the United States one of the first articles I had to read in detail on my return focused on the efforts of the right wing legal shops to sue big public employee unions in Washington, Minnesota, New Jersey, Pennsylvania, Ohio, and California for repayment of agency fees accepted from nonmembers for servicing and bargaining prior to the Supreme Court’s rejection of this forty-one years long standard in the Janus v. AFSCME case.  Local 1000 SEIU composed of almost 100,000 state employees was sued for $100 million alone.

Is this really about the money or just more intimidation as part of the war on the poor and working people?

The US Constitution is clear.  There can be no ex post facto laws, meaning that no one can be liable for behavior that was legal prior to the passage of a new law or court decision.  Federal courts in fact have continued to hold the line on this at the lower level of the courts.  Reimbursement legal challenges in Illinois and other states on the Harris decision that attacked fees being collected from home health care workers in many states have all failed and in most cases were thrown out of court for these reasons.  Some legal experts are worried that the legal strategy from conservatives is to get the case to the determinedly anti-union majority in the Supreme Court by hook-or-crook.  Some lawyers are warning that the collateral damage of opening this window into previous liability could snare a lot of big companies which might be the only thing that protects unions.  Realistically, this is all about trying to intimidate unions and force them to run up their legal bills to the money doesn’t benefit their members in other ways.

In Manchester, England, I talked at length to an organizer who was working as part of a  team with the national employees’ union to get turnout on a strike vote of over 50% of all eligible employees in the bargaining unit, as opposed to just winning a majority of those that vote.  This rule was deliberately imposed as an obstacle for the unions and to some degree it has worked, although after nine years of 1% raises, the organizers are hoping this is the year they send a message.

Interestingly, in Birmingham, England, Ravi Subramanian, the regional director for Unison in the West Midlands, raised this very issue as an anti-union measure that had actually made his union branches stronger.  Faced with the 50% barrier in almost all the votes since it’s imposition, the union has prevailed.  Surprising the crowd, Brother Ravi boasted that the government could raise the bar to 70, 80, even 90%, and he was convinced workers would smash every barrier, and it would build the union even stronger.

He’s not asking for it, mind you, but he’s ready for whatever they throw at the union.  Good advice for organizers and union leaders everywhere.

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Post-Janus Paths: Representation Compensation without Subsidies

Denver       National union strategists and lawyers have doubtlessly been proposing endless alternatives to blunt the impact of the long awaited Janus v. AFSCME verdict of the Supreme Court eliminating the ability for unions in more than twenty states to collect servicing fees from public sector nonmembers for collective bargaining and other functions.  The fruits of such labor are already visible in the action by state legislatures in New Jersey and California to mandate workplace access at orientations for union representatives to meet new workers and give them the opportunity to enroll new members.   In a select number of states where unions continue to have density and public employees have the ear of lawmakers we are likely to see other initiatives.

Some professors have advanced a notion that public authorities directly reimburse unions for collective bargaining functions performed by nonmembers.  Their well-intentioned argument is that there are public policy benefits achieved in preventing workplace conflict and public disruption through a functional bargaining regime that seeks compromise and agreement rather than forcing conflict.  These benefits inure to the public and the workforce, both those that pay union dues to pay for this work and those workers who can now refuse to make such payments, therefore the public authority should offset such losses by providing resources to the unions to do their jobs.

There is a certain logic there, but it can’t be a good idea for governments to subsidize independent unions.  The notion is not unique.  In France for example major union federations are directly subsidized by the government based on their percentage of workforce representation.  Predictably it has led to lower union dues and a decreased emphasis in enrolling workers as union members.  Additionally, in a system that rewards a percentage of membership in a non-exclusive bargaining system, labor is divided as larger federations try to squeeze out smaller unions in order to block their subsidies and viability.  All of this may maintain a status quo, but none of it is necessarily in the best interests of workers.

On the other hand, a more practical policy, and one more politically viable in the American context particularly, might be the system practiced by labor courts and their adjudicators using France as an example again.  At their discretion labor judges make awards of varying amounts to unions representing workers on disputes before the court that are found to have merit which can range from several hundred euros to several thousand depending on the complexity of the case and the judge’s decision much in the way lawyers are awarded fees.  An independent objective party rather than the government itself is subsidizing representation costs of unions on meritorious cases when the workers prevail.  Grievance handling is more expensive for most unions than collective bargaining and labor courts with such discretion would hold arbitrary public and private employers accountable while offsetting the costs of unions to provide this service with both public and workplace benefits.  The EEOC and the DOL in the United States operates similarly in regard to lawyers’ fees, why not union representation?

Unions face a huge organizing problem now that is all our own, but in bargaining and representation new adaptations might be practicable and win wide support in some areas in the post-Janus world.

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