Janus v AFSCME:

What the Supreme Court May Strip from Workers

union rallyThe roar of the approaching storm can be both heard and felt in workplaces across the United States. The prospects inherent in a much anticipated – and in many places feared – Supreme Court decision in the case Janus v AFSCME has the political Right giddy. Among workers’ rights advocates, there is trepidation.

Part of the problem is that the political Right misconstrues what is really at stake should the Supreme Court side against workers and their unions. Presenting the debate over union fees paid by non-union workers in the public sector as a being a matter of alleged freedom of speech is actually sophistry. This is one more assault on people with limited class advantages.

What is really at stake is the capacity of unions to fully serve workers who, by statute, they are obligated to represent.

Wat Is the NLRA?

In 1935 Congress passed the National Labor Relations Act (NLRA). The Act not only granted workers the right to self-organization and collective bargaining but also asserted that it was to be the public policy of the United States to encourage collective bargaining.

Congress was most concerned that with a growing and vital labor union movement there was the possibility for industrial chaos. Their interest, as they were clear, was the establishment of a system of industrial jurisprudence and the creation of a mechanism, short of workplace war, in order for workers to address their legitimate economic concerns.

Central to the NLRA was the notion of “exclusive representation,” a component reaffirmed in the historic Steele v Louisville Railroad (USC, 1944) decision by the Supreme Court. In essence, it asserted that labor unions were the exclusive representatives for workers in a workplace where the union either won a representation election or won recognition from the employer voluntarily.

In either case, the union was/is obligated to represent the workers irrespective of union membership and must do so fairly and with no animus. In other words, a union must represent workers who choose not to join the union.

[Janus v AFSCME] could cripple, if not kill many unions. Corporate America would not be shedding a tear, but anyone who believes in workers’ rights will be in mourning.”

Fair Representation and Remuneration

What does this mean? If you look at the public sector it means that a worker can work for a governmental body, not join the relevant union that represents that set of workers but benefit from the existence of that union through whatever the union wins in collective bargaining. It also means that that same worker can go to the union, should they have a grievance, and the union must represent that worker, yet the worker need not pay anything for this service.

Unions and governments attempted to address the unbalanced nature of this arrangement by agreeing, in many locations, to a fee, sometimes called an “agency fee,” that workers who choose not to join a union will pay in order to cover some of the costs of representation.  This fee does not obligate the worker to anything, and it does not infringe on their freedom of speech.

Consider this analogy. How many towns, cities, counties or states are you aware of that make taxation voluntary, yet will provide – at no cost – fire prevention, police, water, sanitation and education? Such a notion would be laughed out of any serious discourse. And so it should, since provisions such as fire prevention, police, water, sanitation and education cost money.

Fairness and Rationality

This is precisely the recognition for which unions are asking. It is a matter of both fairness and rationality. Yet it is being misdescribed as a means of appealing to both a false sense of the 1st Amendment, as well as equally appealing to greed. After all, who would turn down something for nothing?

The underlying aim of the attack is to weaken unions. The advocates of an end to agency fees are fairly clear about this. Eliminating agency fees will mean that unions will need to utilize more of the resources of dues-paying members to cover the costs of representation for the larger workforce.

This could cripple, if not kill, many unions. Corporate America would not be shedding a tear, but anyone who believes in workers’ rights will be in mourning. This will be one more assault on people with limited class advantages.

The Real Concern

If the political Right is sincerely concerned about freedom of speech, then they should turn their attention to the authoritarian environment inherent in most non-union workplaces. It is in such locales that workers have no freedom of speech and, in general, have few rights that an employer is bound to respect.

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