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Civil Liberties

The State of the Unions Under Trump

Two years ago, deeply conservative billionaires and anti-union activists were on the cusp of a Holy Grail moment when they were stymied by the sudden death of Supreme Court Justice Antonin Scalia. Scalia would have been the fifth vote in a case that would have dealt a crushing blow to public sector unions, a primary target of the right-wing movement. Instead in a major victory for unions, Friedrichs v. California Teachers Association ended up in a 4-4 tie. However, the setback was momentary because a new case is echoing in the Court’s chambers—a case that exposes the links between billionaires, conservatives and the highest court in the land.

The Court recently heard oral arguments in Janus v. AFSCME, which is a copycat case of Friedrichs and simply the one that percolated first to the high court among at least 18 similar cases lounging in other courts. All these cases seek to undo a long-standing legal principle: When unions engage in collective bargaining, they are required to represent everyone in a workplace, even if an individual worker chooses not to join the union. For those who choose not to join the union, they pay “fair share” fees, also known as “agency fees,” to cover the basic costs that the union incurs in the process of bargaining. Then, after a deal is reached, those fees help pay for work the union does to enforce the contract terms. A grievance, for example, can cost tens of thousands of dollars to defend. 

The principle of collecting “fair share” fees has been challenged before, but upheld for decades. In fact, more than 40 years ago, the Supreme Court unanimously concluded in Abood v. Detroit Board of Education that fair share fees could be collected from public-sector workers. The court held that the state had a legitimate interest in safeguarding collective bargaining by preventing “free riders”—people who would, by human nature, be happy to get for free the benefits of better wages won in a negotiated settlement. In those days, the Supreme Court and most of the country’s political class generally accepted collective bargaining as a stabilizing force, a process that maintained order and allowed employers certainty in financial planning.

What has changed? As a recent deep-dive investigation by the Economic Policy Institute shows, the raft of “fair share” cases aren’t bubbling up as an outcome of populist, grassroots initiatives. Instead, the anti-union assault is part of a strategic plan by conservative anti-union zealots who have spawned a network of institutions funded by a handful of extremely wealthy people.  

When union power declines, there’s an increase in wealth inequality. The rich get richer as unions get weaker.
Consider the major sources for the last three anti-“fair share” cases (Janus, Friedrichs and Harris v.Quinn) to be brought before the court in the past five years: the Walton Foundation, the nonprofit arm of the stridently anti-union Wal-Mart heirs who are collectively worth more than $145 billion and are generous donors to the Republican Party; the Ed Uihlein Family Foundation, one of the main financial backers of Wisconsin Gov. Scott Walker whose defining act in office has been crippling collective bargaining rights for public employees; the Donors Trust/Donors Capital Fund, which acts as a conduit for billionaire donors; and, lastly, the Mercer Family Foundation, which, until a recent falling out, was the main patron of Steve Bannon and Breitbart. 

In addition, the Supreme Court has changed dramatically. Its conservative majority has not shied away from jettisoning long-standing precedents in favor of ruling against unions and supporting cases that confer more power to wealthy people and corporations. The most well-known is Citizens United, which left an already shaky campaign finance system in tatters, allowing extremely rich people to flood elections with unlimited amounts of cash. When the Harris “fair share” case lost on very narrow grounds, Justice Samuel Alito, who is perhaps the most hyper-focused, relentless ideologue among the conservative majority, wrote the majority opinion. He essentially invited a more solid case to come before the Court so it could strike down fair share fees. 

The Janus case oral argument was a bracing affirmation of the blind antipathy towards unions harbored by the conservative Justices. Veteran Supreme Court analyst Linda Greenhouse wondered how “Alito and [Justice Anthony] Kennedy, with all their years of experience, could have permitted their intense dislike of organized labor to strip them of judicious inhibition and drive them to act as advocates and even something very close to bullies.” The two Justices spotlighted how the conservative SCOTUS majority views its role as more political operatives implementing an agenda, not fair arbiters of the law. 

It is a virtual certainty the case will be decided by June in a 5-4 vote in favor of Janus. Union officials I’ve spoken to hold on to a sliver of hope because newly-minted Justice Neil Gorsuch was silent during the oral argument. This is the thinnest of reeds, however. In his time on the bench, Gorsuch has proven to be a less-smart version of Scalia, but not a smidgen less of a deeply pro-business, ideological conservative. Public sector unions stand to lose a big slice of revenues, making its task of bargaining and organizing more challenging. Unfortunately, that would hurt all unions, and workers generally. Unions translate, through collective bargaining, the hard work of workers into higher paychecks.

Destroy an individual’s ability to pay their bills and live in dignity, and what you are left with is a powerful incentive to turn to militancy.
As important, unions have been the principle check on authoritarian power and concentration of wealth for over a century. When union power declines, there’s an increase in wealth inequality. The rich get richer as unions get weaker. And that’s really what is behind the Janus case—the rich want to get richer.

But unions could come out stronger over the long-term. Without a doubt, labor’s weakness is largely due to a relentless well-funded assault by corporations. However, the Janus case spotlights a decades-long problem plenty of labor union people privately understood. In too many cases, unions were content to collect dues, or fair share fees, but they were lax in building strong internal bonds with members. Except when a contract fight loomed, public sector workers had a very tenuous connection to their unions, and plenty would probably strain to know the name of the union they belonged to. And, as long as a contract delivered a good deal, unions were content to keep their eyes on in-house matters, which meant missing opportunities to organize new workers.

Faced with the Janus case defeat, many public-sector union leaders have been on a tireless campaign for months to connect with members, signing up a higher number of workers to pay full union dues. Randi Weingarten, president of the 1.5 million-member American Federation of Teachers, told me recently that a campaign that started two years ago will end up having her visit with the leadership of one-third of her 3,425 union chapters. She added that chapters throughout the country are seeing a surge in union enrollment—in part because people are being reminded what the union stands for.

The West Virginia teachers’ strike is one window into a bright future for unions. For nine days, teachers stayed away from their classrooms, furious at a contract offer with a wage increase of one percent that wouldn’t even keep pace with inflation. In the 50 states, West Virginia teachers’ salaries ranked dead last from 2015-2016, according to the National Education Association. And the teachers took to the streets even though striking by public workers is illegal in West Virginia, which is a so-called “right to work” state where a union can’t impose fair share fees. 

In one sense, an outburst of defiance in West Virginia is not a surprise. Despite becoming more Republican-leaning in its statewide and national electoral choices, most West Virginians have some near or distant relative who can trace their roots back to people who lost their lives in the pitched battles to win a union in the coal mines. 

Yet, the larger message from West Virginia is this: Destroy an individual’s ability to pay their bills and live in dignity, and take away a process like collective bargaining that offers a pathway to rebuild a paycheck, and what you are left with is a powerful incentive to turn to militancy. Already, teachers in Arizona, Oklahoma and Kentucky—all Republican-leaning states—are considering strikes. That’s what several decades of conservative anti-union animus has done: declining wages, record-breaking corporate profits, sky-high executive pay and a collective bargaining system under constant attack.

So, the Janus victors may end up with a poisoned chalice, igniting a more limber union movement that adeptly channels the anger of workers.

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