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Posts Tagged ‘Janus v. AFSCME’

When Janus Backfires: A Test Case In Labor Solidarity After Fair Share

Thursday, November 15th, 2018

In the aftermath of this summer’s Janus v. AFSCME Supreme Court decision attacking public-sector unions, the University of Illinois at Chicago is rapidly becoming a bellwether for how those unions might sink or swim in a world without fair share.

UIC prides itself on being one of the most diverse college campuses in the country and one of the most welcoming to working-class students. The city’s only public research university and home to a vast hospital system, UIC employs a cross section of public-sector workers including nurses, teachers, clerical workers, and maintenance workers, nearly all of whom are unionized.

In recent years, university officials have rightly issued public statements critical of government actions that harm members of the campus community, including Trump’s Muslim ban, the Illinois state budget impasse, and the House GOP’s failed attempt to tax graduate student tuition waivers. But since the Supreme Court issued its anti-union decision in the Janus case this June—threatening the collective bargaining rights of thousands of university employees—the administration has been silent. Instead, through their actions, administrators have indicated a willingness to use Janus to engage in union busting.

In the first month after the ruling came down, the university payroll office failed to deduct dues from hundreds of card-signed union members from several unions on campus, including UIC United Faculty (UICUF), the Illinois Nurses Association (INA)SEIU Local 73, and my own union, the UIC Graduate Employees Organization (GEO). In the case of GEO, this cost our relatively small local of graduate student workers a whopping $10,000.

UIC’s failure to deduct member dues in July was not only illegal, but it also effectively silenced workers who actually want to pay dues because they enjoy having workplace rights. The administration openly admitted they hadn’t deducted dues, but said they weren’t going to do anything to remedy this obvious legal violation. Instead, they’ve forced the unions into a protracted grievance and arbitration dispute, apparently hoping they can simply tire us out or outspend us in legal fees.

Further, the administration is claiming the right to unilaterally process membership revocations without notifying the unions, which goes against university HR’s own policy. They also refuse to provide us with timely information about which employees are in our respective bargaining units, which is especially harmful for GEO since our bargaining unit changes dramatically every semester. Not knowing exactly who we represent at all times makes it difficult to sign up new members and impossible to ensure UIC is deducting dues correctly.

In August, GEO discovered that the university had mistakenly deducted dues from sixty nonmembers, individuals we had never claimed were union members in the first place. Mistakes like this put the union at legal risk, since the erroneously deducted money goes into our local’s bank account and makes the local liable for “taking” it. We alerted the administration immediately and they quickly corrected the error. What we still haven’t been able to figure out is why a handful of grad workers, overwhelmed with our normal teaching and research responsibilities and representing our union as volunteers, have to tell well-paid administrators at a multibillion-dollar institution like UIC how to do their jobs.

All of this comes as our unions are in the middle of contract negotiations. Even before Janus, UIC was already prone to bullying campus workers at the bargaining table and pushing us into going on strike. In 2014, faculty with UICUF had to strike to win their first contract. Last fall, the INA-represented staff nurses and administrative nurses at the UI Hospital came within a hair’s breadth of walking off the job before an eleventh-hour agreement was reached. This past spring, grad workers at the Urbana-Champaign campus had to strike for nearly two weeks in order to safeguard tuition waivers.

It comes as no surprise, then, that the administration has tried to exploit the post-Janus confusion around dues deductions to gain an advantage in bargaining, presumably to pressure us into making concessions on issues that matter to our members in exchange for the continued existence of our unions. When GEO first questioned why the administration had not deducted July member dues, they said they would only discuss it with us in contract negotiations—never mind that abiding by existing contract language and existing law is non-negotiable.

UIC grad workers—whose baseline pay is only $18,000 and who are forced to pay up to $2,000 in fees every year—are fighting for living wages and fee waivers. UIC’s tenured and nontenured faculty are fighting for increased job security, shared governance, and raises. That should be the focus of negotiations, not bureaucratic procedures around dues deductions.

The administration is waging its most vicious attack on the underpaid Licensed Practical Nurses (LPNs) with INA at the UI Hospital, who have also been in bargaining since Janus came down. Shortly after the ruling was issued, the university decided to bring in a new lead negotiator, who proceeded to tear up previously agreed-upon articles and introduce extremely regressive proposals in their place. Among other things, UIC is demanding LPNs surrender their right to engage in virtually any kind of concerted activity at the workplace, while demanding INA publicly disavow any kind of protest carried out by its members and threatening to single out union leaders for discipline.

UIC administrators seem to have assumed that Janus would leave our unions weakened and afraid, allowing them to ride roughshod over us and impose terrible contracts. But they miscalculated.

Thanks to the administration’s handling of Janus, the campus unions are working together closely. In late July, members of INA, UICUF, SEIU Local 73, and GEO held a joint march on the boss, showing up unexpectedly at the office of the head of university Labor Relations to demand accountability around the failure to deduct dues. Clearly rattled by this, the administration has since been far more careful around processing deductions and correcting errors when we point them out.

Meanwhile, all of our unions have filed or plan to file both grievances and Unfair Labor Practice charges. GEO and UICUF are ramping up our respective contract campaigns, both building towards possible strikes next spring which might easily coincide. This week, the LPNs will be going out on an indefinite ULP strike, and members from all four of our unions will hold a unified protest and rally as the UIC Board of Trustees gathers on campus for a meeting.

The budding coalition of UIC unions should be on every labor activist’s radar, as it’s emblematic of what a post-Janus world can look like for public-sector unions: a huge uptick in hostility from the boss met with more solidarity, more organizing, more direct action, more strikes, and a deeper determination to fight for our rights as public sector workers to ensure our students get the education they deserve, and our patients get the care they deserve.

This article was originally published at In These Times on November 14, 2018. Reprinted with permission. 

About the Author: Jeff Schuhrke is a Working In These Times contributor based in Chicago. He has a Master’s in Labor Studies from UMass Amherst and is currently pursuing a Ph.D. in labor history at the University of Illinois at Chicago. He was a summer 2013 editorial intern at In These Times.

New Koch Brothers-Funded Super PAC Looks to Capitalize on Janus Decision Ahead of the Election

Tuesday, November 6th, 2018

On the cusp of the midterm elections, Americans for Prosperity (AFP), a right-wing political advocacy organization founded by the billionaire Koch brothers, has endorsed eight GOP House incumbents in the hopes of weakening labor groups’ influence in Washington and ensuring that the AFP’s political agendas remain a priority in Congress.

AFP is a Koch-funded organization whose agenda is in line with other groups—such as Concerned Veterans for America, which is also funded by the Koch brothers—that work against progressive initiatives and protections for labor unions, healthcare reform and any effort to combat climate change, says David Armiak, a researcher for the Center for Media and Democracy, a Wisconsin-based nonprofit watchdog group.

On August 31, AFP endorsed eight GOP House incumbents as its “policy champions”: Peter Roskam (R-Ill. 6th), Dave Brat (R-Va. 7th), Ted Budd (R-N.C. 13th), Steve Chabot (R-Ohio 1st), Will Hurd (R-Texas 23rd), Erik Paulsen (R-Minn. 3rd), Rod Blum (R-Iowa 1st) and David Young (R-Iowa 3rd).

“AFP will fully activate its grassroots infrastructure through phone banks and neighborhood canvassing, as well as deploy targeted digital, mail, and radio advertising” to support these candidates in their upcoming elections, the organization writes in a statement.

While it’s hard to know the specific reason that the AFP singled out these eight GOP incumbents as its “policy champions,” the AFP has “correctly recognized that these are candidates who are vulnerable,” says Alexander Hertel-Fernandez, a political scientist and public affairs professor at Columbia University. According to the nonpartisan election analyst the Cook Political Report, many of them are in toss-up races. In three of the elections, Ill.-06, Iowa-01 and Minn.-03, polls currently lean Democrat.

Armiak says AFP’s newly formed super PAC, Americans for Prosperity Action (AFPA), allows all Koch brother-funded groups to consolidate their spending power into a single political ad-buying powerhouse. This makes it more challenging for an experienced researcher, such as Armiak, to track the money funneling through the Koch brothers’ political network.

“[The groups] are reorganizing their spending filing to make it more complicated,” Armiak says. “It’s a sophisticated network and difficult to figure out and will take a while to study to truly understand how it operates.”

This can be worrisome to progressive interest groups that AFP and Koch brother affiliates typically work against—such as those pushing for healthcare reform and environmental advocacy—because it allows AFP to spend more money against such interest groups with little disclosure of where their funds come from.

Organized labor groups especially may be negatively impacted after the Janus v. AFSCME Supreme Court decision this June. “[AFP wasn’t] directly involved in the Janus decision but heavily supported it,” Hertel-Fernandez says. The decision means right-to-work laws, which prohibit unions from charging non-members fees regarding union services like collective bargaining, now apply to the public sector. This could benefit AFP and its endorsed candidates because it could lessen the financial strength of unions, which will inevitably hurt their lobbying abilities in Washington, according to Hertel-Fernandez.

It’s likely AFP and the Koch brothers are eyeing the Janus decision as an opportunity to use it as justification to support federal right-to-work laws in the private sector, too, Hertel-Fernandez says. AFPA is a new weapon that allows the AFP to spend exorbitant amounts of money to support candidates who will push for private sector right-to-work laws, which are currently applied in 27 states.

As a super PAC, AFPA is not restricted to any donation or spending limits. While it is illegal for a super PAC to coordinate with political candidates, it can spend unlimited amounts to support any candidate it chooses with methods such as advertising and canvassing. Donors to AFPA know that if they want their agendas advanced, they have to keep financially supporting congressmen that have proven to be a strong return on investment by voting on legislation that suits their interests, says Hertel-Fernandez. The eight GOP incumbents AFP has endorsed have historically been aligned with the Koch brothers’ libertarian ideology and political interests.

“To Charles and David Koch, politicians are just actors who are just a means to an end. They are looking for people who will just do what they ask them to,” Hertel-Fernandez says. “They are willing to work with anyone to pursue [their] agenda.”

The Koch brothers and their political network are clearly focused on maintaining influence in Congress. But as we head into the polls today, political analysts and pundits are predicting a blue wave that might just thwart the Koch brothers’ attempt to keep control of the House.

This article was originally published at ThinkProgress on November 6, 2018. Reprinted with permission.

About the Author: Eric Bradach is an editorial intern for In These Times.

Beware the Janus Fix That Relies Too Much on Bosses

Thursday, July 26th, 2018

In the wake of the Supreme Court’s Janus decision, a new approach to financing unions called “direct reimbursement” is gaining traction with Democratic politicians, academics, and even the New York Times editorial board.

It boils down to this: Rather than public sector workers paying dues, their government employer would pay an equivalent amount directly to the union.

Proponents claim this approach will neutralize the impact of the Janus decision and shore up union budgets.

The idea has legs. New York’s most senior Democratic Assemblyman Richard Gottfried is sponsoring a bill to allow public sector unions to negotiate this scheme into their contracts. Hawaii is entertaining a version too.

Backed into a corner and fearful for the future, some unions might jump at this quick fix. It’s a big mistake.

Employer-sponsored unions?

There’s a good reason why such an arrangement would be illegal in the private sector. Federal labor law bars unions from receiving employers’ financial support.

The point of that bar is to keep unions independent and out of the control of the boss. Direct reimbursement would make unions more vulnerable to employer domination.

“It is like a company union,” says Kate Bronfenbrenner, a labor researcher at Cornell University. “What the employer gives out, it can take it away.” 

Aaron Tang, the law professor at the University of California-Davis who dreamed up the idea, has a simple remedy to preserve union independence—guarantee the reimbursements by law, and send any disputes to a third party such as a state labor board. 

But given the depth of employers’ hostility, the feeble enforcement of existing labor laws, the history of company unionism in the U.S. and the fact that state labor boards are often filled with political appointees (just look at the anti-union board stacked by Illinois Governor Bruce Rauner), Tang’s proposal is naïve.

It would also leave unions unprepared to collect dues in the event of repeal by a court or legislature.

“Remove the workers”

A law like this would play right into the anti-union talking point that a union is an outside organization, imposed on workers from above. 

Tang’s proposal treats workers as the problem, not the solution. As he puts it, the policy would work by “removing the workers from the equation” of union funding. Seriously?

A “solution” to Janus that leaves out workers will only reinforce the bad behaviors that got us into this mess in the first place. Too many union leaders react to a weak position by looking for a technical fix or a way to partner up with the boss.

You can’t find a technical fix to an organizing problem.

“This idea is coming from the Democratic Party because they are concerned about union money,” said Bronfenbrenner, “not about workers or building worker power.”

“Many unions have lost the understanding that our fight starts in the workplace,” said Cherrene Horazuk, president of AFSCME 3800 in Minneapolis, who supported a resolution at the union’s national convention opposing the direct reimbursement approach. “If our members know we are fighting for and with them, they’ll know that it is in their interests to be a part of their union.”

Let’s stop looking for shortcuts to surviving Janus, and get down to the hard work of organizing.

This article was originally republished from Labor Notes at In These Times on July 25, 2018. Reprinted with permission. 

About the Author: Chris Brooks is a staff writer and organizer with Labor Notes.

Janus Is Here—But Don’t Ring the Death Knell for the Labor Movement

Wednesday, June 27th, 2018

In a major decision that will impact labor for decades, the U.S. Supreme Court has just declared that all public-sector workers who are represented by a union have a Constitutional right to pay the union nothing for the representation.

The Court overturned its landmark 1977 decision in Abood v. Detroit Board of Education, which permitted public-sector unions to charge fair-share fees that covered the costs of providing collective bargaining and contract administration to non-members that were represented by the union. Today, in Janus v. AFSCME, the Supreme Court has held that the First Amendment prohibits public employee unions from charging a mandatory fee for the costs of representation. Therefore, going forward, all public-sector employees will be under so-called “right to work,” the union-busting legal framework that denies unions the ability to charge workers dues. This decision will directly and indirectly impact how unions are structured, how they engage with their members and objectors, how they organize and educate and how they are funded. But this decision will not destroy, defund or decimate labor.

First off, the Janus decision will only directly impact less than half of the labor movement. This is because the ruling only applies to public-sector workers: federal, state and local government employees. However, federal employees (including postal employees) have long been under so-called “right to work,” so Janus will have minimal direct impact on them. Furthermore, many state and local public-sector workers are already in “right to work” states, so this ruling will have no effect on them. This is not to say that the whole labor movement will not be negatively impacted by a decline in membership among public-sector unions, but it is important to remember that Janus will not place all union members under “right to work.”

It is difficult to predict what effect Janus will have on union membership overall. There is a good chance there will be at least some decline in membership, thanks to the free-rider problem: the likelihood of some workers who are not opposed to the union choosing to pay nothing simply because they can get something for nothing. However, state-level data on the decline of union membership following the passage of state “right to work” laws is not necessarily a good predictor of what will happen after Janus, because most of the state laws are a mixture of anti-worker laws that include “right to work.” For example, in Wisconsin, union membership declined 38 percent  between 2010 (the year prior to the passage of Act 10) and 2016. However, Act 10 contained a host of other provisions, such as the elimination of collective bargaining for public-sector workers.

Following Janus, unions will now have to fight for every union member to ensure they choose to remain members and pay their dues. Right-wing groups of the sort that brought Janus, Friedrichs and other anti-union cases, will mount a nationwide campaign to get members to quit the union. Many labor unions that have not been strong in engaging their membership will have to keep up a constant level of contact and organization to maintain their memberships or risk losing big. They will have to make the case to members why they should stay with the union and pay dues, and they will have to make that case often.

Unions are considering a number of options for getting state laws changed, or changing internal policy, to adjust to Janus. New York passed a law in anticipation of Janus, which other states are considering, that would allow unions to deny or charge for some services, such as grievance representation. Some states are considering laws that would require workers who are not members of the union to pay for representation in grievance procedures. This approach would have the benefit of discouraging free-ridership by not providing the full benefits of membership to those workers who choose not to join. However, it carries the danger of turning unions into pay-for-service organizations that will find themselves turning away workers in their time of need.

Labor law professor Samuel Estreicher has proposed an interesting approach that unions could take that would reduce the rate of possible free-riders, not require legislation, and not require unions to turn away non-paying workers. Estreicher argues that unions should require workers who choose not to pay their union dues to instead donate the money to a 501(c)(3) charity. Unions already permit religious objectors to take this route, and Estreicher suggests expanding the program to any objectors. Since this approach would require all workers to pay an amount equivalent to their dues—but would let them decide if the recipient was the union representing them or a charity—it would separate the true objectors from the free-riders.

The allowance of fair-share fees, in both the public and private sector, was in part intended to promote labor peace, and the imposition of “right to work” may lead to more strikes and labor unrest. The massive teacher strikes this year in West Virginia, Kentucky, Oklahoma, Arizona, Colorado and North Carolina have all taken place in “right to work” states, and this commonfact was likely no coincidence. Workers in “right to work” states tend to have lower salaries and fewer benefits. Meanwhile, unions are weaker, possibly because they serve as a moderating force to avoid direct—and often illegal—confrontation. These effects from “right to work” can create an environment where workers’ frustration grows, they have few options to better their situations without direct action, and they organize at a grass-roots level. After Janus, with “right to work” becoming the new rule for all public-sector workers, there may be a break from a long period of U.S. history when strikes have been rare.

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.
This article was originally published at In These Times on June 27, 2018. Reprinted with permission. 

After Janus, Should Unions Abandon Exclusive Representation?

Tuesday, May 29th, 2018

The Supreme Court is set to issue a ruling on Janus vs. AFSCME, which could have far-reaching consequences for the future of public-sector unions in the United States. The case has sparked a wide-ranging debate within the labor movement about how to deal with the “free-rider problem” of union members who benefit from collective bargaining agreements but opt-out of paying dues. We asked three labor experts to discuss what’s at stake in the case and how they each think unions should respond.

Kate Bronfenbrenner is director of labor education research at Cornell University, Chris Brooks is a staff writer and organizer with Labor Notes and Shaun Richman is a former organizing director at the American Federation of Teachers.

Chris Brooks: The way I see it, right-to-work presents two interlocking problems for unions. The first is that unions are legally required to represent all workers in a bargaining unit that the union has been certified to represent, and in open shops the Duty of Fair Representation (DFR) requires unions to expend resources on non-members who are covered by that contract. This is commonly known as the free rider problem and it gets a lot of attention, for good reason.

The second problem is that open shops also undermine solidarity by pitting workers who pay their fair share to support the union against those who do not. This is the divide-and-conquer problem.

So the free rider problem is institutional: the union has to expend all these resources fighting on behalf of workers who are not members and do not pay dues. And the divide-and-conquer problem is interpersonal: when workers do not all support the union this results in union and non-union members developing adversarial attitudes toward each other which undermines the ability for collective action.

If you believe that the source of a union’s strength is its ability to unite workers in common fights to better their conditions on the job and in the community, then the divide-and-conquer problem is a real impediment to union power. Yet, the free rider problem gets far more attention from union leaders and activists than the divide-and-conquer problem. This is especially true in the discussion around whether unions should ditch exclusive representation and pursue a members-only form of unionism.

In my opinion, most arguments in support of kicking out free riders actually reinforces the employers’ logic—turning union membership into a personal choice and unions themselves into competing vehicles for individualized services rather than vehicles for broad class struggle. So by focusing on the free rider problem to the exclusion of the divide-and-conquer problem, unions run the danger of turning inward and representing a smaller and smaller number of workers rather than seeking to constantly expand their base in larger fights on behalf of all workers in an industry.

Shaun Richman: I had an article published in The Washington Post and I admit it was too cute by half partly because I was trying to amplify what I think was actually the strongest argument that AFSCME is making in the case itself, which is that the agency fee has historically been traded for the no strike clause and if you strike that there is the potential for quite a bit of chaos. So I wanted to put a little bit of fear to whoever might potentially have the ear of Chief Justice Roberts, as crazy as that may sound. But I also wanted to plant the seed of thinking for a few union rebels out there. If the Janus decision comes down as many of us fear then the proper response is to create chaos.

If the entire public sector goes right to work, unions will never look the same. So, then, the project of the left should be “what do we want them to look like?” and “what will drive the bosses craziest?” I’ve written about this before and Chris has respondedat In These Times. There are three things that I am suggesting will happen—two of which, and I think Chris agrees, are sort of inevitable and not particularly desirable. The third part is notinevitable and depends a lot on what we do as activists.

If we lose the agency fee, some unions will seek to go members-only in order to avoid the free rider problem, and that’s a lousy motivation. I’m not encouraging that, but I think it’s also inevitable. Once you have unions representing these workers over here but not those workers over there, it’s also inevitable that you wind up with competitor unions vying for the unrepresented. And the first competitor unions are going to be conservative. These already exist. They’re all over the South and they compete against the American Federation of Teachers (AFT) and National Education Association (NEA) in many districts and they offer bare bones benefits and they promote themselves on “we’re not going to support candidates who are in favor of abortions and we’ll represent you if you have tenure issues.” That’s also bad but also inevitable.

The third step, which is not inevitable but we need to consider in this moment, is at what point do new opposition groups break away from the existing formal union?  When do we just break the exclusive model and compete for members and workplace leadership? Can we get to a point where on the shop floor level you’ve got organizations vying for workers’ dues money and loyalty based on who can take on the boss in a better fight or who can win a better deal on the basis of we’re going to be less confrontational (which, I think, there are a lot of workers whom that appeals to as much as I don’t like that idea)? But the chaos of the employer not being able to make one deal with one union that settles everything for three or five years—that’s just the sort of chaos that the boss class deserves for having pursued this whole Friedrichs and now Janus strategy.

Kate Bronfenbrenner: I have a different perspective that has to do with having looked at this issue over a longer period of time and also having witnessed the UK labor movement wrestle with exclusive representation when their labor law changed. First, I believe there is a third thing that right to work does that is missing from your analysis. Right to work gives employers another point to intimidate, coerce, and threaten employees about being part of the union, all of which employers find much more difficult to do in a union or an agency shop.

My research suggests that employers will act the same way now they do in the process of workers becoming members as they do during an organizing drive. The historical trade-off for unions was that the price of exclusive representation was Duty of Fair Representation (DFR) and unions saw DFR as a burden.

Those of us who were progressives saw that Duty of Fair Representation was the best thing that ever happened to unions because DFR said that unions had to represent women, people of color, the LGBT community, and you couldn’t discriminate against part time versus full time. Historically it was used to force the old guard had to give up domination of unions and to fight for for union democracy because the simplest basis of DFR is the concept of good faith. If used effectively it would be the thing that could break the hold of the mob, or the old guard, or just white men. So you have to remember when you give up exclusive representation you could lose DFR. I can tell you that women and people of color are not going to want to give it up. And I think the fact that the two of you didn’t think of that is probably because you have not been using that in your roles, but it is central to those who are fighting if you are dealing with members who are fighting discrimination in your union, the whole DFR exclusive representation is absolutely critical.

Brooks: Kate, am I wrong that the actual court case establishing the DFR in exclusive representation comes out of the Railway Act, where a local was refusing to represent Black workers?

Bronfenbrenner: Historically, but it kept being reinforced over and over again in cases involving most collective bargaining laws. It’s been reinforced over and over again that the trade-off for exclusive representation that the DFR is tied with exclusive representation.

Richman: Yeah, it was the entire thrust of the NAACP workplace strategy before the 1960’s—that the labor law could be a civil rights act as long as we could win DFR. Herbert Hill wrote a great book about it (Black Labor and the American Legal System). I would also recommend Sophia Z. Lee’s The Workplace Constitution, which explores that history and makes a compelling argument for returning to a strategy of trying to establish constitutional rights in the workplace through the labor act.

Bronfenbrenner: Right. So union workers had protection for LGBTQ workers under DFR long before any other workers did because you could not discriminate on the basis of any class under duty of fair representation. Now whether workers knew that, whether their unions would represent them, is another matter but if you were a union worker or a worker who knew about it, this was where you fought it. So that was very important.

And the third thing that I wanted to say that related to this was that there is a long history in the public sector of independent unions, of company unions, acting as if exclusive representation didn’t exist, where there would only be one member and employers would recognize the “union” establishing a contract bar so no other union could come in.

In the 1980s and 1990s, public sector unions assumed that they were winning decertification elections rather than the independent unions and discovered that they weren’t. Soon enough they realized that the problem was that they weren’t doing a good enough job of representing their members. Workers were not voting for the company unions, which were little more than law firms or insurance companies. They were voting against the poor representation.

The prevalence of these independents is a long running problem that existed before and after exclusive representation, and it exists when there are agency fees and when there are not. Poor enforcement by the NLRB and the difficulty of tracking down these front groups that are not really unions is a much bigger issue that comes out of a divided public sector, and exclusive representation has nothing to do with it.

Brooks: I think right-wing groups are trying to capitalize on the history of company unions and fragmentation in the public sector. The State Policy Network (SPN) has a nationally coordinated strategy that builds on right-to-work laws to further bust unions. One of the tactics their member organizations, which exist in all fifty states, are pursuing is so-called “workers’ choice” legislation. This legislation allows unions to maintain a limited form of exclusivity, but with no duty of fair representation. Unions must still win a certification election to be the sole organization bargaining with the employer, but workers can opt out of the union and seek their own private contract with the boss outside of the collective bargaining agreement.

Requiring a certification election for collective bargaining also saves employers from having a situation where multiple unions can simultaneously pursue separate bargaining agreements for the same group of workers, a legal can of worms that corporations don’t want to open. SPN affiliates tout this legislation as a solution to the free rider problem for unions, since they have no duty to represent non-members, but it also incentivizes employers to bribe and cajole individual workers away from the union.

Employers could offer bonuses to workers if they drop union membership and call it “merit pay.” I don’t think that corporate advocacy groups like the SPN would be promoting this legislation unless they believed it would further weaken unions and fragment the labor movement.

The SPN is also actively organizing these massive opt-out campaigns, where they encourage workers to “give themselves a raise” by dropping union membership. They even have a nationally coordinated week of action called National Employee Freedom Week that eighty organizations participate in. In fact, the SPN think tanks work hand-in-glove with a host of independent education associations—which are basically company unions, purporting to represent teachers while advancing the privatization agenda. In Georgia, Mississippi, Missouri and Texas, these independent education associations claim to be larger than the AFT and NEA affiliates.

So in those places where unions are really strong, there is a high likelihood that we will see an increase in company unions that are working closely with State Policy Network affiliates to further divide workers on the job.

Richman: Chris, what you’re describing are things that are mostly going to happen anyway, if we lose Janus. That SPN opt-out campaign is going to happen. The legislation you describe is not inevitable. I agree we dig a hole for ourselves if the only reason we want to “kick out the scabs” is so we don’t have to represent them in grievances. Because that lays the groundwork for making a union-busting bill seem like a reasonable compromise.

If we lose Janus, unions will never look the same. It’s at moments like this when we have to critically evaluate everything. What do we like about unions and our current workers’ rights regime? What don’t we like and what opportunities has this created for us to at least challenge that?

For me, the opportunity is to think about having multiple competitive unions on the shop floor. I don’t think of this as a model that will lead to multiple contracts. It might lead to no contracts. Everything that I’ve written on this subject so far has been with the assumption that ULP protections against discrimination remain in place so that the boss can’t give one group of workers a better deal because they picked one union over another (or no union at all). If a boss makes a deal with any group of workers or imposes new terms because a union got bargained to impasse, everybody gets the same thing.

Under a competitive multiple union model, I think no strike clauses become basically unenforceable. And these no strike clauses have become really deadly for unions in ways we don’t want to acknowledge. Currently, the workers who should be the most emboldened at work, because they’re protected by a union, have a contract that radically restricts their ability to protest. It’s not just strikes. It curtails the ability to do slow down actions, and malicious compliance, and it forces the union rep to have to rush down to the job and tell their members, you have to stop doing this. And they end up feeling bitter toward the union leadership as much—if not more—than the boss for the conditions that were agitating them still being in place. And then their “my union did nothing for me” stories carry over to non-union shops. Every organizer has heard them.

We need to bring back the strike weapon. And that’s far easier said than done. But it’s really hard to do when you’re severely restricted in your ability for empowered workers to set an example for unorganized workers in taking action and winning.

And, Kate, I have considered the DFR. I can’t imagine a world of multiple competitive unions in a workplace where there wouldn’t be at least one union that says we’re going to be the anti-racist union, we’re going to be the feminist union, and we’re the union for you. Without DFR, you’re right, there’s no legal guarantees. But someone steps into the vacuum and my hope is that at least creates the potential for militancy when militancy is called for in the workplace. With all the other messiness.

There’s going to be plenty of yellow unions and the boss is going to bring back employee representation programs and company unions and all of that. But that mess is exactly what they deserve. They’ve forgotten that exclusive representation is the model that they wanted—we didn’t, necessarily—in the 1940s and 1950s.

Bronfenbrenner: I wouldn’t be ready to throw out DFR. I think that there is too little democracy, and too much discrimination in the labor movement. At this time, we already have right to work in most of the public sector and most of the public sector doesn’t allow strikes, but workers still strike. We see that workers are willing to strike even if they are not allowed to strike, as evidenced by all these teachers, and we have to remember the strike statistics in this country only report strikes that are over 1,000 workers and most workplaces are under 1,000. We have a lot more strikes than are reported.

The labor movement is not going to strike more just because you get rid of no strike clauses. Teamsters had the ability to strike as the last step of their grievance procedure for decades and they never went on strike. I think what is more important is the question of what is going to change the culture and politics of the labor movement. I don’t think changing the right to strike is going to do it.

What is going to make unions actually fight back even on something like fighting on Janus? They’re not even getting in the streets on Janus, so what makes you think they’re actually going to strike on issues in the workplace? We need to think about why workers and unions are so hesitant to strike. I do not believe that chaos necessarily is going to happen. I think employers are much more prepared for this. I think what will happen is that the unions that have been effective and have been working with their members and educating their members and involving their members will be fighting back and the ones that have been sitting back and not doing anything will continue to sit back and not do anything and some will die.

The problem with getting rid of exclusive representation is that some unions are going to think “aha this is what I’m going to do, this is an easy way out,” the same way people used to think “oh it’s easier to organize in health care, oh it’s easier to organize in the public sector, so rather than organize in my industry, which is hard, I’m going to go try health care or the public sector.” But they found that “why can’t I win organizing teachers the same way that AFT does” or “why can’t I win organizing in health care the same way SEIU is doing” and they discovered that it’s not quite as easy as it looks.

Brooks: Yeah, I think Kate’s point is really important: in a right-to-work setting, the employer anti-union campaign never ends. The boss is constantly trying to convince and cajole workers into dropping union membership. And employer anti-union campaigns are really effective, which is why unions don’t win them very often.

If the Supreme Court rules against unions in Janus, anti-union campaigns are only going to gain strength. So, my fear, Shaun, is that you are being overly romantic. I just don’t think left-wing unions are going to suddenly emerge and step into the void left by business-as-usual unionism. If that was the case, then why hasn’t that already happened with the 90 percent of workers that don’t have any union at all?

Richman: The structure is a trap, and exclusive representation is part of that. I don’t think we have a crisis of leadership. I want to turn to the private sector because most of the potential hope in abandoning exclusive representation is in the private sector. Look at the UAW and their struggles at Volkswagen and at Nissan, which Chris is intimately familiar with. I think all three of us could find fault in their organizing strategy and tactics. Kate, I think you have more grounds than anyone in the country to be frustrated because you’ve scientifically proven what it takes to win and most unions have ignored that research for decades! But a third of the workers at Nissan want to have a union. To do so, they have to win an exclusive representation election where the entire power structure of the community comes down on their heads arguing keep the UAW out of the South.

If they had eked out an election win and managed to win a contract a year down the line, at the end of the day they get the obligation of having to represent everyone and probably the one-third of the workers who wanted the union all along are the only ones that join. That’s insane. Charles Morris threw out this theory a decade ago, in The Blue Eagle at Work, about how the NLRA was not intended to have these winner-take-all exclusive representation elections. The point of the NLRA was merely to say to employers anywhere there’s a group of workers that say hey we’re a union you must bargain with them in good faith. He argues that pathway is still open to unions. To the best of my knowledge a few unions politely asked the NLRB for their opinion on that a couple of times rather than all of us demanding that should be a valid pathway for union representation.

If you can win that exclusive representation election, you should win it, and you should also be saddled with the burdens of DFR. But why can’t, and why shouldn’t, the UAW file a petition at every auto factory in the country right now and say we have members here and you need to bargain with us over their working conditions? And why shouldn’t other unions jump into the fray and claim to represent their portion of the workers and drive those non-union companies nuts with a bunch of unions placing demands on them, and organizing to take action?

I think the work that Organization United for Respect (OUR) is doing at Wal-Mart is a good example of that. They by no means have a majority of the workers at Wal-Mart. They are in a few strategic locations. They are a nuisance to the company. They just won a right that workers are allowed to wear union buttons on the shop floor. Wal-Mart has given workers raises in response to their agitation. I’m not suggesting that that model is perfect or what we should all be doing, but I am saying that this should be an avenue open to us. And it only becomes open to us if we’re willing to experiment more with abandoning exclusive representation where it doesn’t work for us.

I would argue that in 90% of private sector workplaces where winning these elections is not possible it’s not working for us currently.

Bronfenbrenner: The comprehensive campaign-organizing model should be part of every organizing effort. Workers are protected under the NLRA when they engage in concerted activity and, as I say in all my organizing research, the union should be acting like a union from the beginning of the campaign. Unions should also be organizing around workplace problems and going to the employer and engaging in actions during the organizing campaign. I’ve been saying for 30 years that you don’t wait to start acting like a union until you win. But there is serious pushback against that element of my model from many organizers.

Unions are very hesitant to start taking on the employer before they win the majority. But there are unions that do that. It’s not just OUR. It’s Warehouse Workers United, SEIU 32BJ, RWDSU, Communications Workers, the Teamsters. All have run campaigns where they begin taking on the employer before the union has been recognized or certified. The unions that have been doing comprehensive campaigns are doing it in bargaining and it’s being done in organizing by the unions who are winning in organizing. So they’re not waiting until they win.

Richman: Thirty or forty years into people getting really serious about organizing as a science and as a craft, the fact that most unions still haven’t embraced an organizing model…

Bronfenbrenner: People have been serious about organizing as a craft from the beginning. It’s just that no one wrote very good books about what they did. The IWW and the UAW organizers, and the textile organizers, they were organizing using the same strategies that are being done now. No one wrote good books about what they did.

Richman: Sure, that’s fair. But the fact that unions are not following an organizing model that’s informed by your researchand other unions’ best practices suggests it’s not a matter of culture but the legal framework that we find ourselves trapped in. Most of the pressure on a union leader is to bring back good contracts for the members you currently represent and keep winning re-election. So that puts more resources into grievance handling and bargaining and it leads to the cost cutting in organizing campaigns.

Bronfenbrenner: I disagree. For the last three decades servicing and education budgets have been cut while huge amounts of the labor movement’s financial and staff resources have been shifted into labor law reform. And I can tell you because I’m part of the debate they don’t want to have about what they they need to do to change to organize. But most either think they are doing everything they can, or it is too hard to do anything different. It is the law that is the problem.

Either way the shared understanding is that unions should put resources into politics and in getting labor law reform because trying to do comprehensive organizing campaigns we’re asking them to do is “too difficult.” But they’re not putting resources into grievance handling anymore. They are putting it into politics and  labor law reform.

Richman: The approach to labor law reform has been too much about trying to preserve the system. The opportunity of the moment is to think beyond the boundaries of the workplace. Enterprise level bargaining has been killing us since the 1970s. As long as union membership is tied to whether or not some group of workers voted to form a union sometime in the past within the four walls of your workplace, that just incentivizes the offshoring and contracting out that’s really what has decimated the labor movement.

Humpty Dumpty is sitting on the wall and if Neil Gorsuch and John Roberts kick him off I am not particularly interested in being one of the king’s horses and men trying to put him together again. At that point the system is fundamentally broken and we need new demands about what kind of system we want and new strategies about how we exploit the brokenness of the system to make them regret what they have done.

Exclusive representation—combined with agency fee and DFR—worked for a long time. But if you knock one piece out, it all falls apart. We shouldn’t be pining for bygone days. We need to be thinking forward about what opportunities this creates. I hope that some people get inspired to try something as crazy as the IWW saying fuck it, we’re going to organize in different workplaces and agitate for work slowdowns and try to gain a few members in a few places we don’t care about expenditures of resources and dues. We’re going to create some chaos.

Brooks: I share Kate’s concerns, I believe that many unions have devolved into highly legalistic organizations. So the solutions they are pursuing to our current problems are highly technical and legal in nature, which means that lobbying and electing Democrats often becomes their top priority. Laws are important, but unions should spend far more time and resources on organizing comprehensive campaigns that build support among large majorities of workers, winning them over to a plan for collective action that can change conditions on the job and in the community.

Instead of this kind of organizing, what we’ve seen over the past few decades is the increasing confinement of class struggle to smaller and smaller segments of workers. Few unions these days aim to represent all workers in an industry. How many unions are engaged in pattern bargaining and setting contract standards across an industry or openly organizing toward a master agreement? To your point, Shaun, unions have become limited to firm-level representation. Or even just a bargaining unit within a firm, since many do not even try to organize everyone who works for the same employer.

Members-only unionism just continues this trend as unions move to represent an even smaller fraction of workers, not as a stepping stone to building a majority, but as a strategy to get out of providing services to workers who don’t pay dues. Ultimately, I believe this is a capitulation to the employers’ right-to-work framework and a retreat from the kind of broad-based organizing that the labor left has been historically committed to.

Bronfenbrenner:  We can no longer talk about the workplace solely through a U.S. framework. Ownership structures are so large, diffuse, and complex that what we should be doing is organizing and bargaining and building relationships between workers across the entire corporation world-wide, company-wide, and industry-wide. That requires getting workers to understand that they need to build power to take on whomever the decision-makers in the company are. It is not the boss that they see once a year at the annual holiday party. It is whoever has the money and really makes the decisions in the ultimate parent company. And that requires building alliances locally, nationally, and internationally, and building a much broader labor movement.

It also means understanding that the person who doesn’t pay union dues in their shop is not the problem. The problem for workers is that now what they have is the chamber of commerce fighting against their right to bargain and the state at all levels is interfering with economic and union rights. Their boss is now some investor somewhere who has decided to buy and sell their company and their jobs who does not care what they make or whether they stay open or not.

You have to figure out what they care about because that is what gives unions  leverage. That’s why workers in America have to get to know workers in Mexico and workers in Europe, those kinds of relationships, that is what the labor movement needs to spend their energy on. That’s what I’m going to spend my energy on.The U.S. labor movement cannot afford to be picking petty fights between workers who are paying dues and workers who aren’t paying dues because they need each other.

Richman: The structure is a trap partly by forcing unions to focus on individual bargaining units, individual workplaces and somehow winning them one-by-one. What we should be doing is not retreating from our bargaining units, but claiming to represent the willing workers in every company in every industry. I’m trying to inspire anyone who is out there reading this to think about an opportunity to spread out wider—in a much more bare bones, scrappier way—but one that puts the union idea in many more workplaces. To get the word out now, rather than we’ll get to you after we somehow win Nissan or Volkswagen. Because that’s not working.

Bronfenbrenner: But you’re not going to get labor law changed unless you have power.  It takes political power to get labor law changed. You can’t get political power until you organize a lot. You’re asking for a labor law change. The point is that focusing on labor law is backwards. We only get labor law reform after we do a great deal of organizing. First you have to organize and build power.

During the whole Employee Free Choice Act (EFCA) fight everyone stopped organizing and spent all their energy on EFCA. That’s the danger of labor law reform.

This article was originally published at In These times on May 25, 2018. Reprinted with permission. 
About the Authors: Kate Bronfenbrenner is director of labor education research at Cornell University, Chris Brooks is a staff writer and organizer with Labor Notes and Shaun Richman is a former organizing director at the American Federation of Teachers.

The Freedom to Join

Tuesday, May 15th, 2018

The U.S. Supreme Court will make a decision in the coming weeks whether or not to undermine the freedom of millions of teachers, nurses and other public workers to have strong unions. Today, the AFL-CIO has launched a new website, FreedomToJoin.org, that provides critical information about the Janus v. AFSCME case, counters misinformation, explains the value of union membership and draws attention to the wave of collective action in America.

Big-moneyed corporate interests have brought Janus v. AFSCME forward because they understand how working people in unions can negotiate a fair return on our work.

While its focused on public employees, Janus is part of a multipronged attack on our institutions and values we hold dear.

Right-wing corporations have tried to crush public unions for decades, and they’ve poured tens of millions of dollars into this case alone in an effort to slash pay and cut benefits for nurses, EMS workers, 911 dispatchers, security personnel and others who keep our communities clean and safe and provide other essential public services.

Yet even in the face of these attacks, all over the country workers are organizing and striking as we haven’t seen in years.

America is waking up to the benefits of unionism, and we’ll continue to organize and mobilize, no matter what the Supreme Court decides.

This blog was originally published at AFL-CIO on May 15, 2018. Reprinted with permission.

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars

I Work with Mark Janus. Here’s How He Benefits from a Strong Union.

Monday, May 14th, 2018

Like everyone else in the labor movement, I’m nervously awaiting the Supreme Court ruling in Janus v. AFSCME Council 31, which would weaken public sector unions by letting workers receive the benefits of representation without contributing toward the cost.

But I’ve got a unique vantage point: I work in the same building as the plaintiff, Mark Janus.

We’re both child support specialists for the state of Illinois, where we do accounting on child support cases. I do this work because it’s fulfilling to help kids and single parents get the resources they need to support themselves.

What convinced Mr. Janus to join this destructive lawsuit? Your guess is as good as mine. I do know it’s much bigger than him. He’s the public face, but this case is backed by a network of billionaires and corporate front groups like the National Right-to-Work Foundation.

But the truth is, even Mark Janus himself benefits from union representation. Here are a few of the ways:

1. Without our union, Mr. Janus’s job would probably have been outsourced by now.

A drastic provision in the state’s “last, best, and final offer” in 2016 would have given Governor Rauner the right to outsource and privatize state employees’ jobs without accountability. Our union is all that’s preventing critical public services from being privatized.

Our agency would be at particular risk, because Illinois already has a longstanding contract with a scandal-ridden, for-profit corporation called Maximus to perform some of our agency’s functions. They modify child support orders and interact with employers about income withholding—pretty simple tasks, yet state employees regularly have to correct their work. If they were to take over more complex tasks, we can imagine how badly that would go! Their concern is for profit, not kids.

If the governor could get away with it, it’s very likely he would expand the Maximus contract to privatize jobs like mine and Mr. Janus’s. He already did something similar to nurses in the prison system. But our union has to be consulted before the state can outsource anything. And when they do outsource, we monitor the contract and discuss how long it will continue. I go to those meetings for our union. Right now, instead of letting management expand its deal with Maximus, we’ve been pressing to cut that contract.

2. Mr. Janus has received $17,000 in union-negotiated raises.

Over his years working for the state, Mr. Janus has earned general wage increases and steps that would not have been guaranteed if not for the union.

3. The public—including the parents and kids Mr. Janus serves—has access to resources like childcare that our union has fought to defend.

Our union allows us speak up together on matters far beyond money. When Governor Rauner tried to cut childcare benefits for low-income single parents, we teamed up with outraged community members and made him back off. And when the budget impasse was forcing domestic violence shelters to close their doors, we kept pushing for years until a veto-proof budget was passed.

4. Our union blocked the employer from doubling the cost of Mr. Janus’s health benefits.

 

In negotiations the state has pushed to double our health insurance costs and drastically reduce coverage. The employer declared impasse and walked away from the bargaining table. AFSCME took the matter to the Labor Relations Board and the courts—securing a temporary restraining order that prevents the governor from imposing his extreme demands.

5. We make sure Mr. Janus’s office is warm in the winter and cool in the summer.

As a union we deal with health safety issues large and small. In the department that rescues children from household abuse and neglect, we’re continually pushing for sufficient staffing. The stakes are high: one member was killed on the job after she went out on an urgent call alone.

Other matters are less dramatic. In state office buildings we solve problems like flooding, mold, leaky windows, and toxic pigeon feces. One building had someone creeping up on employees in the parking lot, so we worked with management to get better lighting and security patrols.

In the building where Mr. Janus and I work, the heating and cooling system is extremely old. Twice a year they bring in a computer from 1982 to switch from heat to air conditioning for the summer, and vice versa for the winter. So when the weather fluctuates, we work to get portable heating or cooling units deployed where they’re needed.

Many of these are ongoing issues, where our union acts as a watchdog. We have a health and safety chair on the union executive board. Any time a problem comes up, he starts by approaching management to resolve it. If that doesn’t work, he can file an OSHA complaint plus a high-level grievance.

6. Thanks to our union, Mr. Janus will retire with a pension.

Our union has fought to save the defined-pension that Mr. Janus will receive upon retirement. A coalition of unions including AFSCME took the issue to court—and won. The Illinois Supreme Court ruled that employees’ pension benefits cannot be cut.

7. Mr. Janus can get sick and still have a job when he comes back.

Before this job I worked without a union, in the retail industry, where I experienced what it means to be an at-will employee. Three absences would cost an employee their job—even if they called in sick and provided a doctor’s note.

8. Our union ensured that Mr. Janus could be fairly hired, regardless of his politics.

In public service our ultimate bosses are elected officials. There was a time in Illinois when to be hired or promoted, you were expected to make a contribution to the political party in power. But a 1990 Supreme Court case called Rutan v. Republican Party of Illinois put an end to that. Today our union enforces a triple-blind system for fair treatment in hiring and promotions, making sure seniority is followed. It’s one more way that even Mr. Janus benefits from having a union on the job.

This blog was originally published at Labor Notes and In These Times. Reprinted with permission.

About the Author: Donnie Killen is a child support specialist for the state of Illinois and vice president/executive steward of AFSCME Local 2600.

Today's Working Women Honor Their Courageous Foremothers

Tuesday, March 20th, 2018

Nearly two centuries ago, a group of women and girls — some as young as 12 — decided they’d had enough. Laboring in the textile mills of Lowell, Massachusetts, they faced exhausting 14-hour days, abusive supervisors and dangerous working conditions. When threatened with a pay cut, they finally put their foot down.

The mill workers organized, went on strike and formed America’s first union of working women. They shocked their bosses, captured the attention of a young nation and blazed a trail for the nascent labor movement that would follow.

As we celebrate Women’s History Month, working women are proudly living up to that example—organizing, taking to the streets and running for office in unprecedented numbers. It is a reminder that the movements for worker and women’s rights always have been interwoven.

But even as we rally together, our opponents are proving to be as relentless as ever. It’s been 184 years since that first strike in Lowell, and our rights still are being threatened by the rich and powerful. The Janus v. AFSCME case currently before the Supreme Court is one of the most egregious examples.

Janus is specifically designed to undermine public-sector unions’ ability to advocate for working people and negotiate fair contracts. More than that, it is a direct attack on working women. The right to organize and bargain together is our single best ticket to equal pay, paid time off and protection from harassment and discrimination.

Women of color would be particularly hurt by a bad decision in this case. Some 1.5 million public employees are African-American women, more than 17 percent of the public-sector workforce. Weaker collective bargaining rights would leave these workers with even less of a voice on the job.

This only would add insult to injury as black women already face a double pay gap based on race and gender, earning only 67 cents on the dollar compared to white men.

This is a moment for working women to take our fight to the next level. For generations, in the face of powerful opposition, we have stood up for the idea that protecting the dignity and rights of working people is a cause in which everyone has a stake.

This blog was originally published at AFL-CIO on March 19, 2018. Reprinted with permission.

About the Author: Liz Shuler is secretary-treasurer of the 12.5 million-member AFL-CIO, the largest federation of unions in the United States.

Republicans Are Taking Voter Suppression to the Workplace

Tuesday, January 16th, 2018

A Republican party that survives through voter suppression may be replicating its model in the workplace. In December, the National Labor Relations Board (NLRB) invited public commentary on a possible revocation of a rule that makes employers provide union organizers with contact information for workers in advance of a representation election.

Ostensibly, the Board, which will almost certainly remain in control of Republicans until 2021, is reconsidering Obama-era rules that sped up the timeline of union elections and added phone numbers and email addresses to the list of contact info that unions must be furnished before an election. But outgoing Board Chairman Phil Miscimarra’s bellyaching about “employee rights of free choice and privacy” implies openness to removing any legal right of union organizers to talk with potential members.

The very fact that Trump’s NLRB is inviting public comment indicates that it is considering reversing a much older precedent: the 52-year-old Excelsior rule that employers should provide a list of names and addresses of eligible voters in an upcoming union certification election. Sharon Block, a former member of the NLRB and current Executive Director of the Labor and Worklife Program at Harvard Law School, has argued that the slew of hastily-decided reversals of second-term Obama precedents “seemed to be a rush to set the clock back on workers’ rights as much as possible.”

The Excelsior rule makes employers provide union organizers with a list of eligible voters and their home addresses a few days before an election. It’s an essential tool in a campaign, and any cut is a blow to unions. However, it is also important to remember that Excelsior was a bad compromise, and a real solution lies in actual free speech in the workplace. That will require that unions wage a free speech fight to regain our voice at work.

Captive-audience meetings versus knocking on doors

As soon as the National Labor Relations Act was passed in 1935, employers were already challenging the legal framework for workers to organize and bargain collectively.

In six short years, the bosses succeeded in demolishing the Act’s mandate of employer neutrality by strenuously appealing to the Supreme Court that the standard restricts bosses’ First Amendment right to inform their workers about just how strongly they oppose unionization. Six years after that, a Republican Congress codified this unequal application of free speech in the Taft-Hartley Act.

For a brief time after Taft-Hartley, the NLRB enforced an equal time standard by granting union organizers access to talk to workers on the job when an employer conducted captive-audience meetings. In an all-too-familiar pattern, the Board ping-ponged back and forth between different legal standards on employer speech and union access, depending on which political party was in the White House, until 1966.

That was the year of Excelsior Underwear, Inc ., the NLRB decision that established the right for unions to be furnished with a list of names and addresses of eligible voters. It was issued on the same day that the Board declined to reinstate the equal time rule. The case that we should have won that day was General Electric Co. and McCulloch Corp.

Loathe to trample on management’s rights and private property, the Democratic majority begged the unions in that case to try visiting workers at home and see if that effectively counter-balanced the boss’s work-time campaigning.

Anyone who has worked as a union organizer will tell you that an Excelsior list is no match for the mandatory round-the-clock campaigns of intimidation that union-busters consider “management’s most important weapon” in beating back an organizing drive.

Kate Bronfenbrenner, director of Labor Education Research at Cornell University, has been documenting employer union-busting tactics for decades. Her most recent study, covering the period of 1999 to 2003, found that 9 out of 10 employers use captive-audience meetings to fight a union organizing drive. Bosses threaten to cut wages and benefits in 47 percent of documented cases, and to shut down entirely in 57 percent of union elections. Incredibly, in one out of 10 campaigns employers hired “consultants” to impersonate NLRB agents.

That report is nearly nine years old. It is likely that when Dr. Bronfenbrenner updates her research, all of these numbers will be even higher—particularly the instances of outright lies and deception.

Within the General Electric Co. and McCulloch Corp. decision, the NLRB explicitly invited unions to press the issue of equal time if experience were to prove that knocking on workers’ doors was no match for mandatory captive-audience meetings. Labor law scholars Charles Morris and Paul Secunda were clever enough to notice this half-century-old invitation. Last year, they organized 106 of their leading peers to sign on to a petition to the NLRB to reinstate the equal time rule.

The right to free speech

We shouldn’t hold our breath waiting for Trump’s NLRB to respond to that petition, but we also shouldn’t be patient about demanding change. This past summer, I proposed that unions wage a constitutional battle to challenge the most unequal aspects of labor law and fight for workers’ constitutional rights on the job. Call it Labor’s Bill of Rights.

At the heart of the problem is that the National Labor Relations Act derives its constitutional authority from the Commerce Clause. That means that when workers’ rights are challenged in the courts, judges are weighing corporations’ First Amendment claims against unions’ claims that workers’ rights to organize and go on strike are good for business.

Under that framework, bosses’ rights and business interests have trumped workers’ free speech and human rights. Consider union certification elections. These are official legal elections conducted by an arm of the federal government. At stake is whether the government will enforce certain statutory rights of the workers who wish to form a union. The rules of the election are determined by the government through court decisions, congressional action and NLRB rule-making.  In this simple “yes” or “no” vote about whether there shall be a union, only an employer—and only one advocating a “no” vote—can force voters to attend speeches where they will tell them how to vote And if any voter declines to attend, she can be fired. This is compelled political speech and a massive violation of workers’ free speech rights.

Perversely, Trump’s NLRB could be doing us a favor if it really does kill Excelsior lists by making the imbalance of free speech rights in union organizing campaigns that much starker. Regardless of what new form of union busting the Trump NLRB endorses, we should start waging a campaign to restore the equal time rule now.

What this free speech fight would look like as a campaign is this: every time an employer stages a captive-audience meeting in advance of a union election, we should file an Unfair Labor Practice charge. And every time a union loses an election where the employer conducted captive-audience meetings (which, again, is almost always), we should file an appeal to have the election results overturned.

We should be filing these cases now, even with a Trump Board that will dismiss them all. If we can file a couple hundred challenges and make enough noise about them, we can turn the free speech fight over captive-audience meetings into an obvious controversy that the next Democratic-majority NLRB must respond to.

A Democratic NLRB with a modicum of decency would—at a minimum—re-establish the rule that conducting captive-audience meetings while providing union advocates no right of response is grounds to void an election and order a re-run. Better would be a rule making the very act of conducting captive-audience meetings an Unfair Labor Practice subject to court injunctions, unless union advocates are granted an equivalent platform—in work locations, on work time—from which to campaign for a union yes vote.

If the NLRB were to rule in our favor, we should expect the first employer to face sanctions to resist and drag the case into the federal courts. And then we’re off to the races with a well-deserved counter-attack to the cynical right-wing HarrisFriedrichs and Janus efforts to use free speech as a cudgel against union rights.

This article was originally published at In These Times on January 16, 2018. Reprinted with permission. 

About the Author: Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.

How Business Unionism Got Us to Janus

Friday, November 10th, 2017

In September, the Supreme Court agreed to hear Janus vs. AFSCME, a case that has the potential to undermine public sector unions by curtailing unions’ right to charge non-members an “agency fee.” This fee covers the protection and services the union is obligated to provide all employees in the bargaining unit.

Many labor leaders and pundits have identified unions’ loss of revenue as the most dire consequence of an unfavorable ruling in the Janus case. Others have pointed out that the forces behind Janus don’t only aim to weaken public employee unions: they are seeking to destroy the public sector and public ownership of resources across the board.

However, the Right’s deeper, darker strategic purpose has been mostly ignored, even by unions: Janus fits in with a larger project, led by the State Policy Network—a network of right-wing think tanks—that aims not only to “defund and defang” unions but to “deliver the mortal blow to permanently break” the Left’s “stranglehold on our society.”

Anyone who cares about democracy and the social and economic well-being of workers has a stake in how unions will respond to the Court’s decision. And with Trump-appointee Neil Gorsuch now sitting on the bench, it appears likely that the ruling will not go in labor’s favor.

The real crisis at hand

The tacit assumption of Janus supporters and foes alike is that, when faced with a choice between being a union member and paying dues or not, significant numbers of members will bolt, and non-members who have been paying “agency fees” will not join. Because unions understand the danger posed by Janus as largely financial, they have focused on saving money, cutting staff and pursuing mergers. Some have also determined that they must be proactive to stave off mass desertions and are reaching out to members to solidify their support as dues payers.

Belt-tightening and talking to members may temporarily fortify union apparatus, but this approach ignores the question Janus demands we ask: Why is labor predicting members will desert their unions and that agency-fee payers will refuse to join?

These assumptions labor holds around Janus exemplify the real crisis unions confront—one not often discussed, even behind closed doors. In defining their purpose primarily as protecting members’ narrowly conceived economic interests and shaping the organization to function like a business, unions construct a very limited role for the workers they represent. Under this status quo, members are generally considered passive, with limited authority and voice. Their sole “power” is to pay dues and cast votes in what are generally uncontested elections for officers.

The right-wing forces behind Janus have used their frighteningly vast financial resources to exploit this weakness. The Janus brief, filed by the National Right to Work Foundation on behalf of Illinois public employee Mark Janus, articulates anti-union arguments familiar to any union activist who has tried to recruit skeptical co-workers. The plaintiff’s claims interrogate AFSCME’s purposes, its presence as a political force and whether it serves as a collective voice for working people on the job and in the larger society.

The brief reads:

Janus objects to many of the public-policy positions that AFSCME advocates, including the positions that AFSCME advocates for in collective bargaining. For example, he does not agree with what he views as the union’s one-sided politicking for only its point of view. Janus also believes that AFSCME’s behavior in bargaining does not appreciate the current fiscal crises in Illinois and does not reflect his best interests or the interests of Illinois citizens.

In building support for Janus, the Right has questioned the meaning of union membership while also criticizing public employee unions’ engagement in politics. Unions have frequently been ineffective in responding to the charge that they are just another special interest group, buying politicians for their members’ benefit. Unions have disarmed themselves in this assault by adopting the mentality and tactics of special interests. Labor has by and large accepted the Right’s definition of the contest (winning over “friendly” politicians in either party), the weapons (campaign donations), and the opponents (workers in other countries as our competitors). In doing so, labor has turned its back on its unique and most powerful resource—an informed, empowered and mobilized membership.

Instead, labor has countered the Right’s arguments on narrow grounds, railing against “free riders,” who they say will require unions “to represent non-members, who would be paying nothing at all, passing that burden off to dues-paying members.”

But this argument has little resonance to workers who already feel they are not well-represented. Like Mark Janus, they don’t feel their voices count. The “union” exists apart from them, with staff and officials insulated from even hearing, let alone responding to, members’ opinions and needs. The economic payoff from union dues can be hard to see when your paycheck hasn’t increased or in some cases, has decreased, despite your union having bargained in your name.

And this argument also avoids addressing the larger case made by the Right: that joining a union is not in workers’ best interest. The Right has confused workers by selling an individualistic, competitive ideology. And unions have been too slow to address why this ideology is harmful and antithetical to principles of collective action and solidarity. As others have observed, organized labor has by and large forgotten the grammar and vocabulary of class struggle.

From “it” to “we”

Though we shouldn’t adopt their methods or mentality, labor can learn a great deal from the Right’s victories. To move from defense to offense, labor needs to develop a new mindset. The strategies being discussed to avoid disaster post-Janus reflect many unions’ unwillingness to reimagine themselves.

One of these strategies is to eschew the legal responsibility to be “exclusive representative” of the bargaining unit, thereby creating competition between unions. Multiple unions representing workers for a single employer is the norm in other countries, where unions are allied with political parties. And some might consider it an idea worth pursuing. But encouraging competition among unions is a disaster, as Chris Brooks demonstrates in a close study of what occurred in Tennessee when an NEA affiliate lost exclusive representation. Workers turn against one another, viewing one another as rivals. Company unions, masquerading as professional groups that offer low insurance rates, compete, successfully, against traditional unions.

Is a “Workers’ Bill of Rights” an answer to Janus and the anticipated loss of collective bargaining in more states, as has been proposed in this publication? This is an interesting strategy but its limitation is that it’s a legalistic solution, not a political one. It doesn’t speak to the reasons workers choose not to join unions when they have that right, or to why they vote them down in elections.

Further, as Nelson Lichtenstein points out, the “rights discourse” is limited by being individual. What makes unions unique is that they represent members’ individual interests through struggle for their collective interests. Moreover, such a bill of rights ignores social oppression that workers experience on the job and separates their lives and rights outside the workplace from those they have inside. This strategy’s major flaw is not in what it tries to do but that it substitute for labor’s ability to critically analyze its losses.

One way to understand what adopting a new mindset would mean is looking to what occurred when the Caucus of Rank and File Educators (CORE), the reform caucus of the Chicago Teachers Union (CTU), won the union’s leadership. This caucus conceived of the CTU as a member-driven union that served members’ economic interests best when it supported social justice issues across the board. The newly elected leadership altered the way the union made its purpose evident and worked to make all the union’s operations support this new mindset.

CORE put the people it represented, employees of the Chicago Public Schools, at the center of its organizing, as Jane McAlevey puts it. A member-driven union gives people a reason to be union members and not agency fee payers. The goal? Shift the union from being an “it” to being “we.”

Democracy or bust

Putting workers at the center of organizing requires union democracy. It also demands moving towards international solidarity. What Kim Moody calls “labor nationalism” has weakened the unions by allowing workers to fall prey to Trump’s xenophobia. “’Buy American” is very close to “Make America Great Again.” Such slogans lead workers to become hostile to their counterparts in other countries rather than to the transnational corporations and elites that set economic policy.

Overcoming the fallout from Janus will require reimagining union membership by inverting hierarchical relations that replicate disempowerment on the job. To do this, unions need to grapple with a number of pressing questions:

Why have professional negotiators or paid staff sent to the bargaining table by national- or state-level unions rather than members who have been elected based on their leadership and ideas? Should union organizers be elected rather than being hired and appointed? Why aren’t members allowed to know how their representatives vote in the unions’ executive council meetings? Should endorsements for political office be made by the membership in a referendum? Should unions use “participatory budgeting” to have members decide priorities for where their dues are allocated? What is a member’s responsibility for recruiting and educating co-workers about the union?

Activists who have tried to recruit co-workers to their union know that changing people’s minds about joining can be slow and hard work. It requires listening and a deep commitment to union ideals because people often hold beliefs that are inimical to collective action. This work also requires having a union you trust will make a difference in the lives of its members. Like democracy anywhere, union democracy is difficult to obtain and fragile. It can be inefficient and it creates tensions. But it’s also the key to union power. Vibrant democracy and a mobilized membership are crucial to winning at the bargaining table and to enforcing any agreement in the workplace. Like all legal rights, the contract is only as strong as members’ knowledge of its provisions and willingness to protect it.

This is a moment of truth for unions and their supporters. We need to look in the mirror and see that Janus has two faces. The case could reduce organized labor to a shell, or it could be the start of a remarkable revitalization that draws strength from the widespread social movements that have emerged from both the Bernie Sanders campaign and Trump’s election. The latter is possible, but it will be up to all of us to make it a reality.

This article was originally published at In These Times on November 10, 2017. Reprinted with permission. 

About the Author: Lois Weiner is a professor of education at New Jersey City University who is on the editorial board of New Politics. Her newest book is The Future of Our Schools: Teachers Unions and Social Justice.

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