Labor’s Existential Crisis: ‘Janus’ and the Future of Collective Bargaining

By Joseph A. McCartin, July 23, 2018, Commonweal

Mark Janus outside of the U.S. Supreme Court in February 2018 (CNS photo/Leah Millis, Reuters)

On June 27, by a 5-4 majority, the Supreme Court in Janus v. American Federation of State, County, and Municipal Employees ruled as unconstitutional laws in twenty-two states and the District of Columbia that gave public-employee unions the right to collect fees from the workers they represent. The majority opinion, authored by Justice Samuel Alito, held that collective bargaining in the public sector was a fundamentally political act, and that no workers could be compelled to pay for the benefits they receive from collective bargaining without infringing on their First Amendment rights to free speech and free association.

The full significance of the decision has eluded most commentators. Many have characterized it as a blow to the finances of public-employee unions whose members account for nearly one-half of the U.S. labor movement, undercutting one of the Democratic Party’s strongest institutional allies. And it is. But more ominously, at a time when inequality is surging and the economy is changing in ways that continue to weaken worker bargaining power, the court dismantled what has been a cornerstone of U.S. labor policy for decades. Janus puts all the nation’s public-sector workers on a “right-to-work” basis, endangering the very concept of collective bargaining.

Even before the Janus decision, no public-sector workers could be compelled to pay union dues. At most, they could be required—if state laws allowed it—to abide by contracts approved by the majority of their coworkers that stipulated that all workers covered by such contracts share the costs of winning and administering them. These “agency fees” were not equivalent to union dues and could not be used for electioneering. Under the provisions of the Janus decision, governments must assume that their employees prefer to be free riders unless they indicate otherwise. States must now require that workers opt in to support the union.

The devastating effects of the decision are already being felt. Public-employee unions are now cutting their budgets, laying off staff, and putting once robust campaigns like the fast-food workers’ Fight for $15 on hold. The nation’s largest union, the National Education Association (NEA), which represents more than three million teachers, estimates that it will lose 370,000 members over the next two years. The American Federation of Teachers (AFT) and the Service Employees International Union (SEIU) also expect significant membership losses.

 

Janus v. AFSCME was no fluke. It was more than forty years in the making. The rise of public-sector unions in the 1960s caught the anti-union movement by surprise. They had been focused on passing right-to-work laws at the state level and fighting labor’s effort to amend the anti-union Taft–Hartley Act in Congress. It was not until the early 1970s that the National Right to Work Committee realized the threat posed by the unionization of millions of teachers, sanitation workers, social workers, and other government employees.

As recent efforts by Catholic universities to block the unionization of their adjunct faculty and graduate assistants show, the once grand edifice of Catholic social teaching on workers’ rights has little purchase these days, even within many Catholic institutions.

As anti-unionists turned their attention belatedly to the public sector, Sylvester Petro, a libertarian law professor who rubbed shoulders with Ludwig von Mises, Friedrich A. Hayek, and Milton Friedman at Mont Pelerin Society meetings, helped anti-union forces devise their legal strategy to attack public-sector unions. Petro was a lifelong opponent of collective bargaining—he called it “compulsory bargaining”—and believed that it infringed on the individual rights of workers to decide for themselves what conditions they were willing to accept at work. In The Labor Policy of the Free Society, published in 1957, he called for rolling back the 1935 Wagner Act, which had granted collective bargaining rights to a broad swath of private-sector workers.

Petro adapted to the rise of public-sector unions by reworking his old arguments against “compulsory” bargaining. Instead of attacking bargaining per se, he contended that public-sector unions were unavoidably political vehicles and that any laws that allowed workers to be compelled to pay for union activity undermined the First Amendment.

When Petro advanced that argument before the Supreme Court in 1977, in Abood v. Detroit Board of Education, it failed badly. But the United States was different then. There was still significant bipartisan support for public-sector collective bargaining. The Michigan law whose provisions Petro challenged in Abood had been signed by a Republican governor. Richard Nixon’s appointees to the court, including both Chief Justice Warren Burger and Justice William Rehnquist, found Petro’s arguments ponderous and exasperating. An Eisenhower appointee, Justice Potter Stewart, wrote the court’s controlling opinion, ruling that public-sector unions could collect agency fees as long as they weren’t used for partisan political purposes. It’s telling that an argument dismissed as radical libertarian overreach by the Burger Court could be embraced by every Republican appointee on today’s court.

That such a change was in the offing has been unmistakable since at least 2012. It was then, in the case of Knox v. SEIU, that Justice Alito first made clear his intention to overturn Abood. Two years later, he made this even clearer in his opinion in Harris v. Quinn. Alito would have gotten his wish in 2016 in the case of Friedrichs v. California Teachers Association had Justice Antonin Scalia not died and left the court deadlocked. It was only with the arrival of Justice Neil Gorsuch, appointed by President Donald Trump last year, that Alito was able to secure his long-sought objective.

But it wasn’t just the composition and disposition of the Court that had changed since 1977. That shift reflected a broader hard right turn in U.S. politics. As the number of liberal Republicans dwindled and the party became a vehicle for conservative and libertarian ideologues, collective bargaining in any form, not just in the public sector, lost the bipartisan support it once enjoyed. Even some leading Democrats seemed to give up on the conviction once firmly embodied in the New Deal’s policies that political democracy cannot thrive unless workers enjoy a measure of democracy at work—through strong unions that bargain collectively with employers.

That Catholic justices on the Supreme Court have followed and reinforced this trend, embracing a theory that originated on the libertarian fringe, illustrates another factor in this rightward shift: the role that decades of culture wars have played in weakening Catholic social teaching on labor. Of the five Catholics on the court, four sided with the plaintiff. (That tally becomes five of six Catholics—all five ruling against the union—if Neil Gorsuch, who was baptized and educated as a Catholic but now worships as an Episcopalian, is counted.) Their position, that individual workers have a constitutional right to avoid supporting a union that bargains on their behalf and that of their coworkers, reveals the marginalization of an idea once deeply embedded in American thinking on labor relations, an idea that Catholic social teaching once helped legitimize: that collective bargaining is deserving of the support of those it protects.

The court’s decision also arrived after a generation of Catholic leaders deprioritized church teaching on union rights and instead made fighting the culture wars central to their political witness. To be sure, official church teaching on labor issues did not change. The U.S. Conference of Catholic Bishops even submitted an amicus curie brief supporting the union’s position in Janus. After the decision was announced, Bishop Frank J. Dewane, of the USCCB’s Committee on Domestic Justice and Human Development, quoted Pope Benedict XVI’s encyclical Caritas in veritate to express his disappointment in a decision that “renders the long-held view of so many bishops constitutionally out-of-bounds, and threatens to ‘limit the freedom or negotiating capacity of labor unions.’”

But most bishops remained silent on the Janus case, and some, including Bishop Thomas John Paprocki of Springfield, Illinois, publicly rejected the USCCB’s stance. He took to social media to applaud the court for ensuring workers’ right “to be free from coercion in speech,” celebrating that workers would no longer be “required to pay dues to support unions”—even though workers were not required to pay union dues.

Unfortunately, Bishop Paprocki is not an outlier. As recent efforts by Catholic universities to block the unionization of their adjunct faculty and graduate assistants show, the once grand edifice of Catholic social teaching on workers’ rights has little purchase these days, even within many Catholic institutions.

Although the nascent effort to reinvent public-sector bargaining has a long way to go, there is reason to believe that Janus will accelerate it.

 

History has confirmed the wisdom of Catholics who believed that securing democracy in the workplace would help protect and expand it in politics. From the Progressive Era through the New Deal to the formation of public-sector unions in the 1960s, their defense of collective bargaining led to a more just, if still imperfect, society. As collective bargaining expanded, so did political democracy: voting rights were won by women and African Americans, poll taxes were eliminated, and the voting age was lowered to cover anyone old enough to serve in the military; the power of money in politics was curbed; and economic inequality sank to a level not seen before or since. Catholic teaching played a supportive role in all these developments.

Yet that era is now gone. As collective bargaining has been rolled back, efforts to suppress voting have returned, inequality has grown, and unregulated big money again dominates politics. In many ways, we now confront a world not so different from that of the late nineteenth century, which gave birth both to Catholic social teaching on labor and to U.S. workers’ long, bitter struggle to win collective-bargaining rights.

Like our forebears in the era of Rerum novarum, we now face the challenge of articulating principles and devising practical mechanisms that can build a more humane and democratic world. Our urgent task is to revitalize what they bequeathed us—both our moral tradition and the tool of collective bargaining that this tradition did so much to legitimize. It is difficult to imagine how we can tame the most destructive features of today’s capitalism and preserve a robust democracy without reviving workers’ ability to bargain collectively.

Even before Janus, collective bargaining was becoming an increasingly ineffectual tool in the public and private sector alike. The form of collective bargaining that developed in the private sector in the mid-twentieth century began to break down in a world where power became concentrated in the hands of fewer economic actors and the financialization of the economy altered the goals and behavior of employers—their every decision now subject to potential punishment by fickle financial markets or the manipulations of private equity. It was not built for a world where subcontracting, franchising, and extended international supply chains insulate those who call the shots from the demands of the workers whose employment conditions they dictate from afar, or where “gig” employment frees corporations like Uber from even being categorized—let alone held accountable—as employers.

Similarly, public-sector bargaining was not created for a world where governments operate in a constant state of forced austerity, saddled with growing debt and subjected to relentless privatization. Nor can it survive conditions where taxation is shifted from the rich to the backs of working people, even as governments compete to bestow tax abatements on the nation’s wealthiest corporations in the name of development—as many cities are now doing to lure Amazon’s new facility. Like private-sector workers, government employees are finding that they lack the ability to bargain with the financial forces that are determining the conditions under which they work.

Realizing that they must revitalize bargaining in response to these new conditions, public-sector unions began to experiment with new approaches in the aftermath of the Great Recession. Since 2012, teachers’ unions affiliated with the NEA and the AFT in Chicago, St. Paul, and Seattle, and municipal workers affiliated with the SEIU and AFSCME in San Diego and Los Angeles, have sought to expand the ranks of those who participate in collective bargaining, open up its processes, and broaden its purposes. They have invited community allies to help craft bargaining demands that advance shared goals, then insisted that these allies get a seat at the bargaining table.

These experiments have used bargaining to challenge how big money controls the public agenda. Chicago teachers documented the loss of tens of millions of dollars in school funding to toxic interest-rate swaps foisted on the school district by private managers, and millions more in tax giveaways to wealthy corporations; Los Angeles municipal workers found that their city spent more in fees to wealthy Wall Street firms than it did maintaining streets; St. Paul teachers discovered that their school district did business with banks that foreclosed on students’ families during the school year; and Seattle teachers exposed rampant racial inequities. Strong union-community alliances used bargaining to address these issues.

These experimenters convened at Georgetown University in 2014 and gave a name to their approach, one that resonates deeply with the language of Catholic social teaching. They called it Bargaining for the Common Good.

The teacher uprisings this past spring took up Bargaining for the Common Good in style if not in name. In West Virginia, teachers refused to return to work until all state workers had received a pay increase equal to theirs. In Oklahoma, teachers protested the state’s failure to fairly tax wealthy oil and gas interests. In Arizona, they demanded that no further tax cuts be enacted until the state’s per-pupil spending on education reached the national average.

Although the nascent effort to reinvent public-sector bargaining has a long way to go, there is reason to believe that Janus will accelerate it. To survive, unions know they must enlist allies and cultivate public support by defending the common good. As they find ways to do this, there is also reason to believe that their successes might help revitalize our deeply broken system of private-sector bargaining. Just as the success of private-sector bargaining after World War II provided a model for spreading public-sector bargaining in the 1960s, public-sector experiments with Bargaining for the Common Good could in time inspire new private-sector bargaining models.

As unions struggle to respond creatively to this crucial moment, can we expect the same from Catholic leaders? Pope Francis eloquently defends unions and condemns “the economy of exclusion and inequality”; some influential U.S. bishops echo him. But overall, the U.S. church’s defense of collective bargaining needs to be more than an afterthought, remembered only when it is imperiled. It isn’t only unions that are facing an existential crisis after Janus—so is Catholic social teaching on labor.

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