A war over workers’ rights, individual versus collective

The fight rages on in Congress, where 34 Democratic senators and 34 Democratic House members have signed on to legislation by Sen. Mazie Hirono, D-Hawaii, and Rep. Matt Cartwright, D-Penn., that aims to limit worker freedom under the guise of expanding it.

It rages on in Missouri, where Democrats and unions are rallying for an Aug. 7 referendum to veto the state’s recently-passed right-to-work law. The state legislature passed that law early last year, allowing both public and private-sector workers in the state to opt out of financially supporting unions. Unions rallied the signatures to get a vote on it.

The war rages on in public sector workplaces across the nation, as unions struggle to prevent government workers from learning about or exercising their right to stop paying representation fees — a right granted to them in late June by the Supreme Court’s Janus ruling.

To be sure, that is not how the unions, activists and Democrats would put it. They argue that they are the workers’ champions, fighting to protect them from depredations of corporate America and a conservative anti-labor agenda. Their efforts on workers’ behalf, they maintain, require that unions be financially stable, and that means all the workers they aspire to represent must pay the union regular fees. This includes not only voluntary members, but also non-members, dissenters and anybody who happens to take a job at workplace that is already unionized.

From the unions’ perspective, it doesn’t matter what the individual workers actually want. For their own good, they must pay up.

Right-to-work laws and the Janus ruling, by elevating individual preference, therefore threaten that system.

This is not a discussion the unions or their allies like to have. Despite repeated requests, Hirono and Cartwright’s offices declined to talk about their legislation. The Missouri AFL-CIO, which is leading the charge to overturn the state’s right to work law, had no interest in discussing the matter.

That’s because getting into the specifics of what a right-to-work law does can be dangerous for them, even when they are talking to the union rank and file.

“Once you get around to explaining right-to-work, by the time that you have explained (to union members) what it is, people are thinking it’s a pretty reasonable idea,” said Ben Johnson, former president of both American Federation of Teachers Vermont and the Vermont AFL-CIO, now a private consultant.

What’s more, workers tend to resent the implication unions typically make — that if they opt out of the union, they become freeloaders.

“When you hear the unions talking about this issue you hear so much about ‘free riders’ and that folks who just want to get something for nothing,” said Johnson. “The members I was talking to were public sector higher education: faculty and professional staff. I cannot remember anyone I ever talked to that sounded like a free rider. Every one I ever talked to who was an agency fee payer said it was because they didn’t want anything to do with the union and they wished it wasn’t there.”

This is why right-to-work supporters believe that if they can just get workers’ attention, they can win them over, even if they had only heard the union’s side previously. ”If people are open-minded to it, you win,” said Dan Meehan, president of the Missouri Chamber of Commerce, one of the main groups seeking to preserve the state’s right to work law. “If they are closed-minded to it because a labor boss told them something on it, you might get them, you might not.”

This is why unions and their allies have reacted to Janus and to right-to-work laws with a campaign of misdirection. They hope to reframe the issue as an attack on workers’ rights without ever having to explain what specific rights were taken away.

This is why Hirono and Cartwright’s legislation is titled the Public Service Freedom to Negotiate Act.

The AFL-CIO, the nation’s largest labor federation, said the Supreme court did “the bidding of corporate elites” in its Janus ruling, but offered no rebuttal to the legal decision other than to say it “abandons decades of commonsense precedent.”

The official statement from AFSCME, the defendant in the case, declared the ruling an “unprecedented political attack” but similarly avoided discussing any aspect of the actual case. It’s website did link to what it promised was an “in-depth story” on the case, a 20-page document with only one sentence even mentioning Janus.

Nor do the unions take kindly to others’ attempts to fill people in. When the Michigan-based Mackinac Center launched an outreach campaign called “My Pay My Say” and sent out emails to public sector workers alerting them of their rights under Janus, a irritated Tarrytown, New York union activist named Wendy Waczek called to say, “You really are a b**ch and I cannot believe that you sent stuff to my membership asking us to opting-out. We’re all union. Union strong. NYSUT. Don’t go there. Trust me, you’re messing with the wrong people.”

What she didn’t say was why, if the union’s solidarity was so strong and none of her fellow members could ever be swayed, Mackinac’s message to workers, that they are free to opt out of paying their union, had her so upset in the first place.

The fight has huge political implications. Organized labor is a major funder of the Democratic Party, having given more than $1.3 billion to party organizations and liberal nonprofit and activist groups since 2010, according to a survey of federal data compiled by the Center for Union Facts, a conservative watchdog organization. A mere one percent of unions’ money went to conservative groups or causes. The giving clashes with the actual beliefs of most rank-and-file unions members, a healthy minority of whom lean Republican.

And so Janus cuts to the heart of an entire political movement. As Ben Wikler of MoveOn.org described it to the New York Times this month, “If the progressive movement is a navy, they’re trying to take out our aircraft carriers.”

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For the better part of a century, unions have relied on provisions in labor-management contracts — variously called “security clauses,” “agency fees” and “fair share” fees — that say that any worker covered by a collective bargaining agreement must pay the union. A 1988 Supreme Court decision known as Beck said workers could not be forced to pay for activities other than collective bargaining, but left the burden on the workers to seek recompense.

There is an argument for coercing workers to back unions. If workers benefit from union collective bargaining but don’t pay for it, they become “free riders” on the backs of those who do. If some workers are allowed to opt out, then others, even pro-union ones, will feel like suckers for continuing to pay. The underfunded union will then suffer, as will its ability to represent the workers, making them all worse off.

“It is the classic free rider problem,” said Heidi Shierholz, senior economist for liberal Economic Policy Institute. “People will have to opt to pay for something they would otherwise get for free, that their colleagues would get for free. Can you imagine if paying for taxes was free?”

But this is an argument against the rights of individual workers, and one that involves forcibly taking a cut out of those workers’ paychecks. That’s a major problem for unions and their allies. In order to preserve a strong union movement, they must stop workers from invoking any right to dissent.

As Mark Janus, the plaintiff in the Supreme Court case put it to the Washington Examiner in a February interview, “It’s not about the money for me. It’s about my rights. My right to say ‘no’ is at least as important as my right to say ‘yes.’ ”

It also undermines the unions’ claim that workers want to belong to unions and are only held back from doing so by unscrupulous employers or pro-management laws or regulations. In attempting to suppress dissent by workers, unions are conceding that they cannot count on workers taking their side if the question is left up to the workers themselves.

“The complaints by organized labor seem to miss the mark,” said Steve Bernstein, a management-side attorney with the law firm Fisher & Phillips. “It always boils down to two things: Freedom of choice and we’re living in a time when generationally the American worker is gravitating increasingly toward flexibility and freedom in their careers.”

For a long time, this wasn’t much of an issue, as right-to-work laws were found mostly in southern and rural states that never had strong union movements to begin with. Very few states adopted such laws after 1963. But there has been a resurgence in interest this century. Since 2012, six states have adopted right-to-work laws, including states with historically strong union cultures, such as Michigan, West Virginia and Indiana. The catalyst appears to have been Republican Wisconsin Gov. Scott Walker’s successful bid in 2011 to overhaul his state’s public sector union rules over heavy union opposition.

The Supreme Court has also steadily chipped away at unions’ ability to extract funds from unwilling workers. In 2012. the court ruled in Knox v. SEIU, which said workers had to be allowed to opt out of special assessments levied by unions for political activity. In 2014, Harris v. Quinn struck down Illinois’ claim that home healthcare workers were state employees eligible for organizing.

But the biggest shift yet comes now with Janus, which established that non-union government workers cannot be forced to contribute to a union absent their affirmative consent. Such coercion, Justice Samuel Alito wrote, is unconstitutional because it violates workers’ First Amendment rights. The ruling overturned a 40-year-old precedent called Abood v. Detroit Board of Education.

The result is a potentially major blow to public sector union finances. Workers who previously had no say in the matter can now choose to end dues deductions from their paychecks. This is why, ahead of Janus, the National Education Association announced it was cutting its budget by $28 million in anticipation of lost revenue. The Service Employees International Union cut its budget by 30 percent in anticipation of the decision. An internal survey by the American Federation of State, County and Municipal Employees, the union in the Janus case, which has 1.6 million members, found that only a third of them would voluntarily pay dues, and half of its membership couldn’t be counted upon to do that, according to a 2015 Bloomberg report. Fifteen percent would be certain to opt out of paying dues entirely.

Unions had one advantage regarding Janus: They knew it was coming. The Supreme Court had heard a very similar case in 2016 called Friedrichs v. California Teachers Association that resulted in a 4-4 split because Justice Antonin Scalia had died. Thus it was widely expected that President Trump’s replacement for Scalia, Justice Neil Gorsuch, would side with the conservatives in Janus, which he in fact did.

“After the Harris decision, they saw the writing on the wall that public sector right-to-work was heading their way,” Johnson said. “A lot of unions tried a lot of different projects to get agency fee payers converted into members and those projects basically didn’t work. So now they doing what they have to do, by hook or by crook, to keep the bottom from falling out. These are membership organizations. If they could get their membership numbers up by just asking people to join up, that’s what they’d do. But they can’t do it that way. So they have to continue being propped up.”

That means keeping workers from engaging in the freedom to opt-out. An advantage unions have is that a lot of workers aren’t up on these issues. An April study by the nonprofit group Educators for Excellence found that 57 percent of teachers had heard nothing at all about the Supreme Court’s then-pending Janus decision, including 47 percent of active union members. Just over two-thirds of non-union members, 68 percent, reported they had heard nothing about it.

The unions still state they are running major outreach efforts to workers but have also leaned on Democratic allies in statehouses for help. New Jersey unions were able to get Democratic governor Phil Murphy to sign legislation titled the Workplace Democracy Enhancement Act in May preventing workers who had previously authorized union dues deduction from opting out except during an annual window only 10 days long. That window would be based on when each individual worker was first hired, so there is no common window to which any one worker could alert co-workers.

Four other states, New York, Delaware, Hawaii and Washington, also passed laws within the last year affirming that any union fee deductions would be automatic and requiring that workers must opt-out in writing. Individual union contracts would then be able to specify those conditions for submitting the opt-outs. One union, New York State United Teachers, encouraged new members to sign documents limiting them to opt out only during the month of August, when most teachers are busy preparing for a new school year.

Unions and their allies have sought to preemptively undermine the Janus ruling in other ways as well. A Washington State law signed in March by Democratic Governor Jay Inslee spun off the state entity that subsidized in-home caregivers, who had been unionized as public sector workers, into a technically private-sector organization. The idea is to put these workers out of the reach of the Janus ruling.

In five states, California, Maryland, New Jersey, New York and Washington, laws have been passed requiring new public sector workers to attend mandatory orientation sessions that feature union organizers.

Meanwhile, in Congress, Hirono and Cartwright introduced the Public Service Freedom to Negotiate Act, with the endorsement of their respective chambers’ party leadership. The legislation is framed as an effort to preserve worker rights. However buried in both is language that “Requires public employers to … provide for the payroll deduction of labor organization fees to any duly-selected representative of public employees pursuant to the terms of an authorization executed by such public employees.”

In other words, it would make automatic dues deduction federal law. This, like many of the other state initiatives, appears to contradict Janus but could still be legal based on how courts interpret “affirmative consent.” If a worker ever signed anything, even unknowingly, that authorized a deduction in the fine print, they could still be required to pay. Notably, both bills include provisions requiring “enforcement of all rights, responsibilities, and protections … of any written contract or memorandum of understanding between a labor organization and a public employer.”

Their legislation would also require public sector employers to “recognize the labor organization of its public employees … without requiring an election to recertify a labor organization that is already recognized as the representative of such employees unless not less than 30 percent of such employees in the appropriate unit freely sign a petition to decertify.”

That section would invalidate laws passed in states like Wisconsin, which require automatic recertification votes if a union’s active membership dips below a certain level, or if workplace turnover means that a majority of the people that voted for union representation are no longer there.

Conservatives, meanwhile, are pushing to expand what states like Wisconsin have done — again, championing workers’ individual rights over union members’ collective rights. With the Employee Rights Act, sponsored by Sen. Orrin Hatch, R-Utah, and Rep. Phil Roe, R-Tenn., they hope (among other things) to require periodic union recertification votes, and secret-ballot workplace elections in which unions must win actual majorities of employees (not just a majority of those voting) in workplaces they hope to represent, in order to ensure that unions enjoy the support of the workers they represent.

Hirono’s legislation, in favor of collective union rights over workers’ individual rights, would cut back against the trend, but it is unlikely to be taken up at all in the current Republican-controlled Congress. But it offers a foretaste of what could move on the floor next year, should Democrats regain control of one or both chambers.