By Dan Jacoby
For The Herald
In its recent Janus decision, the Supreme Court put an end to agency fees that allow public sector unions to enforce contributions toward the costs they incur to bargain collectively.
The court argued that, “Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns.” In so arguing, the court fundamentally altered the inherent calculus of union membership and will inevitably force major changes in the ways public sector unions operate. Nearly half of the 10.7 percent of labor that is unionized is in the public sector. That already historically unhealthy figure is now poised to fall even lower unless labor restructures.
The major question at stake involves the promotion of workplace democracy. About one third of employees’ waking life is typically spent at work where employers exercise their unparalleled rights to control worker movement, speech and even loyalty. Working for a particular employer is considered a matter of individual choice. But workers in too many situations know that quitting an oppressive workplace can undo their lives when reemployment is uncertain.
The Supreme Court’s assumption that agency fees force workers to support unions with their pay is no different from the coercion workers experience when they accept work. Any job comes with conditions and situations that won’t be bargained. If we must assume that workers choose their employer’s location, control, company handbook or job description it should be no different to assert that they knew and likewise accept their legally recognized unions as a condition of employment. Some elements of life simply are experienced collectively. To try to turn those elements into a matter of individual choice is to systematically reduce workers’ power in a situation in which they are already weak.
It is wrong to argue, as did the court, that the agency fee subsidizes a private third party. The union is its members. That union law requires exclusive bargaining power for all workers, whether members or not, may eventually become another matter for review, and if exclusive representation is denied, then indeed, the union becomes more like a private agent hired. In other words, this ruling will push public policy further down the discredited path of private contracting agencies. Private contractors do bargain the terms of employment, but are almost inevitably captured by employers, such that workers effectively lose their independent bargaining status.
Since Ronald Reagan’s presidency the United States has undergone a major restructuring that advances the logic of markets while diminishing both the logics of collective human rights and democracy. As we know from our history of slavery, markets can operate perfectly well while disregarding fundamental rights for persons. Over their long history unions have become an integral part of the mechanisms ensuring basic rights and their enforcement. If the existing labor movement is destroyed we cannot expect that underlying problems inherent in work and contract to disappear, leaving a void that will need to be filled.
Without unions, would corporations lobby for safe workplaces or that politicians would tax anyone to enhance worker security? Without unions, would low-income workers be able to complain when management violated their contracts, changed the work conditions or violated their contracts, or would the police automatically know to come and arrest such scofflaws? Free market advocates say that competition ensures workers their greatest protection, and indeed without unions that would likely be their only protector. But that is a slim reed to hold against the rising tide of marketplace vulnerabilities.
In the long history of labor we have seen working peoples and labor parties, anti-slavery and free land movements, craft and industrial unions, civil rights, gay and women’s movements, shaped by needs and existing possibilities.
We are at a crossroads. The major lifeline being tossed to workers is self-improvement through education. We have seen that access to unequal education is no solution by itself. If labor cannot successfully mediate and improve the workplace directly, its ability to rationalize education may become the only game in town.
Regardless, because workplace problems are not going away, there will always be a need for a movement that responds to felt issues using whatever tools are available. Now is the time for strategizing how best to make labor’s voices heard.
Dan Jocoby is a professor of economics, education and labor at the University of Washington’s Bothell campus. He is also a Harry Bridges Endowed Chair of Labor Studies, Emerita.