Court ruling a blow, not a knockout, to public unions

J. Scott Applewhite/AP
People gather at the Supreme Court awaiting a decision in an Illinois union dues case, Janus vs. AFSCME, in Washington on June 25, 2018. The outcome of that case and several others were not announced Monday as the court's term comes to a close.
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By siding with Mark Janus, a government worker in Illinois who objected to having to fund the union that represents him in pay negotiations, the US Supreme Court has left open the door for others like him. Should they choose to stampede out the door, organized labor would be in an even more precarious situation than it is today, when roughly 1 in 10 workers is unionized. Of those, public sector unions are nearly as large as private ones. But some unions are also pioneering new ways of connecting with community groups and pushing for broader collective agreements, particularly in local school systems. This means not just higher salaries but also smaller classroom sizes. Such activism suggests that more nimble unions will find a way forward as they try to help workers whose share of the economic pie is barely growing. “I very much would like to see unions get stronger and have more influence particularly when it comes to wages,” says Lane Kenworthy, a sociologist who studies inequality.

Why We Wrote This

The court's ruling raises questions about the further weakening of organized labor at a time of rising economic inequality. Yet some say unions will be able to adjust to the changed landscape.

A US Supreme Court ruling Wednesday has dealt a sharp blow to public-sector labor unions at a time when organized labor is struggling to reverse decades of decline in membership. 

The decision, which affirmed broad free-speech rights for workers, appears certain to undercut the clout of unions representing government employees that have emerged as a bastion of labor activism. It also could inspire follow-on actions by supporters and foes of organized labor in both the public and private sector.

The plaintiff, Mark Janus, who works for Illinois's state government, argued that being called on to pay unions' fees violated his free-speech rights. In a 5-4 ruling, the Court’s conservative majority agreed that the activities of a public-sector union – even collective bargaining over pay and benefits – are inherently a form of political speech.

Why We Wrote This

The court's ruling raises questions about the further weakening of organized labor at a time of rising economic inequality. Yet some say unions will be able to adjust to the changed landscape.

This upends a long-standing norm of “fair-share” fees: Workers should help cover the costs of union bargaining that determines their compensation, even if they chose not to join the union. Without such a system, argue labor activists, some “free riders” reap the benefits of unionization without sharing the costs. Now, in the public sector, that system of fee collection has been overturned.

The court ruling comes at a time when workplace disruption caused by automation and globalization has amplified calls for a better deal for workers in the spirit of the 1930s New Deal. Some policy experts point to a decline in labor-union power as an explanation, in part, for stagnant or slow-growing wages in contrast to an ever higher share of the nation's income going to capital. 

“That's an enormous problem,” says Lane Kenworthy, a sociologist who studies inequality at the University of California, San Diego. “I very much would like to see unions get stronger and have more influence particularly when it comes to wages.”

But he says the recent trends don’t make him optimistic about any such rebound. 

The court's ruling had been widely expected, given its ideological makeup. And that may yet be grounds for hope in labor-union circles. “Don’t mourn, organize,” AFL-CIO president Richard Trumka said on Twitter.

“Two years ago, I would have said a big blow, because I don't think the labor movement was ready for it,” says Joseph McCartin, a labor expert and professor of history at Georgetown University.

A changed landscape

The labor movement has been broadening its work beyond its own ranks, joining efforts such as the “Fight for $15” to lobby for changes to state and local minimum wages. The AFL-CIO recently began rolling out an advertising campaign, “Freedom to Join,” to promote the advantages of union membership. 

To some degree, questions over the fair treatment of workers have shifted to become a matter of legislation rather than union bargaining. The push for higher minimum wages and parental-leave laws in many states are examples of this.

But for most workers, such measures don’t substitute for the kind of leverage that unions provide as a counterweight to the wage-setting power of employers, Mr. Kenworthy says.

“There's no reason to think unions can't adjust” to the changed landscape, says Terry Pell, president of the Center for Individual Rights, a conservative legal-rights group in Washington that supported the Janus petition and others like it. “I would not take it as a foregone conclusion that all [public] unions are going to suffer a precipitous drop in revenue. Unions are going to have to sell themselves to their members.”

Polling suggests that the popularity of labor unions as an institution is on an upswing: Sixty-one percent of Americans said they approve of labor unions in a Gallup poll last year, up from a low of 48 percent in 2009 and on par with polling in the post-New Deal era. 

Mr. Pell says public-sector unions currently enjoy bargaining power that their private-sector counterparts do not. “Public-sector unions lobby the taxpayers in ways that are not available to private-sector unions,” he says.

Nationwide, roughly a third of public-sector workers are unionized vs. 6.5 percent of workers in the private sector, making them close to half of the nearly 15 million workers who are unionized.

The Janus ruling is likely to whittle away at those numbers, as teachers, police officers, and administrators opt not to pay into union coffers.

Over a three- to five-year period, public-sector unions could lose 4 to 8 percent of their members, estimates Robert Bruno, director of the Labor Education Program at the University of Illinois at Urbana-Champaign. Nationally, that could add up to 730,000 fewer members. “Clearly, there would be a pretty significant financial hit,” he says.

Take Illinois, a Democratic-run state with strong unions where Mr. Janus works. A drop in membership of that size would shrink revenues by $20 million to $25 million, less money for bargaining, organizing, and political activity.

Moreover, a growing number of Republican-run states have passed “right to work” laws, which similarly allow private-sector workers to avoid union fees if they don’t join a union. Now only 22 states, mostly in the Northeast and Pacific region, aren’t in the “right to work” camp.

Defining the 'common good'

Union leaders have been recasting their message to retain loyalty and try to grow their ranks. One intriguing development is a shift towards “bargaining for the common good.”

Rather than pushing strictly for more money during contract talks, some union locals are working with community groups to bring up public issues at the bargaining table. A 2012 Chicago teachers' strike, which blunted the mayor’s school reform plan, has inspired a series of contracts in other cities that awarded better pay and benefits to teachers along with negotiated improvements in learning conditions.

In 2014, teacher unions in Portland, Ore., and St. Paul, Minn., got contracts that mandated expansions of preschool programs and smaller classes. A year later, Seattle teachers won changes in recess, discipline procedures, and mental-health initiatives that parents and students had asked for. This year, St. Paul teachers again teamed up with community groups and parents to successfully bargain for reduced class sizes, better services for special ed and English learners, and student discipline reforms.

Teacher unions are at the vanguard because their ties to the community are long term and close-knit, says Mr. Bruno of the University of Illinois.

Even in right-to-work red states, where unions have less representation, teachers in West Virginia, Oklahoma, Arizona, and Kentucky have walked out over low pay and poor conditions. 

“Maybe 10 percent of them were in a union,” Bruno says. “But they sure acted as though they were in a union.”

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