Today’s announcement that Justice Kennedy is retiring overshadowed one of the Supreme Court’s final decisions of the term, Janus v. AFSCME. The Cour in Janus held that requiring non-members of public sector unions to pay their “fair share” of dues to pay for collective bargaining violates the First Amendment. The decision was not a surprise. This decision was poised (in another case) when Scalia died, and with Gorsuch the deciding factor, unions have been fearing this day for awhile.
Before I was a labor arbitrator, I was a labor lawyer representing unions, and we saw this day on the horizon long ago. The Republican effort in 2011 in Wisconsin to end public sector bargaining rights laid bare the strategy we could expect. Even though I am now a third party neutral, I do think that collective bargaining is an appropriate and effective model of labor relations, and that employers may come to regret this decision. Negotiating with multiple and even individual employee representatives, handling grievances with lawyers who are ignorant of industrial and legal standards of the contract, two and three tier contract tiers, the diversity of state and local laws that will flourish — this is the landscape employers will contend with when they don’t have strong bargaining partners.
As dark a day as this is for unions (and everyone else, given how awful Kennedy’s replacement is likely to be), all is not lost. Back on my old blog, I wrote several times about how unions could and transform themselves to better provide services to more members. Charging for representation services to all employees (free to members) is being considered by the New York legislature, and I expect we’ll see it in other states soon. That could underwrite the kind of things unions should be doing. HERE is a post I wrote in 2011 about what unions can do to increase their effectiveness. I’ve excerpted a substantial part of one of those posts in the following paragraph. I would note that unions are much more popular than they were in 2011, and the political climate may yet shift, but I think these issues are worth considering.
(FROM THE ARCHIVES) What do the unions, as the legal institutions charged with enforcing these rights (rather than the government), have to offer in furtherance of collective bargaining rights? Even if the right side ultimately prevails in this war- and even if Scott Walker was using the budget shortfall as a Trojan horse for the deprivation of these rights — many state and local governments are hamstrung financially by their collectively bargained pension and healthcare obligations.
I’ll be blunt: unions have been part of the problem. And workers aren’t really buying what unions are selling. Unions blame a range of factors for their organizing and public image problems: bad labor and immigration laws (“if we just pass EFCA!”), dirty employer tricks, the proliferation of individual rights, worker fear, weak Democrats, etc. etc. The fact is, unions had it much harder at the turn of the century. No laws or laws criminalizing unions, actual violence against workers, no political power. But people wanted collective bargaining power (not unions per se) and they were willing to stand up for it, the way folks in Wisconsin are today.
So what can unions do about it? I don’t claim to know the answer. But I have some ideas. First of all, unions need to change the way they offer services to their members. Currently, unions assign staff based on their members’ employer. These people are responsible for knowing all of the collective bargaining agreements with each employer, and enforcing the agreements with grievances. They might also collect dues or do political fundraising, and might know a little bit about their members’ benefits. Some unions also have an external organizing staff that is trying to organize new members. Staff are chronically stretched, and are expected to have a super-human range of skills (legal advocacy, negotiations, employee benefits, counseling, organizing, political skills, communications skills) with hardly any staff development opportunities. In reality, 80–90% of their time is spent dealing with 2% of their members, “the squeaky wheels” who have grievances pending. Union staff take their frustrations out on the employers they interact with. The “Employer” becomes the cause of all their problems. They associate their work with the problems of their members vis a vis their employer, and never consider the underlying work, or industry itself. They also fail to advocate for their silent majority of members, who have a diminishing sense of the value their union brings to them.
Unions need to organize themselves differently. They should have advocates who litigate grievances, negotiators who bargain all contracts, employee benefit specialists, political departments who advocate for legislation and regulations that benefit both workers — in their work — and their industry, and external organizers. They should have extensive training and education departments committed to upgrading worker skills based on the latest technology (rather than fighting it). Each of these departments would offer services to union members without regard to their employer, and would regularly confer with one another about their industry norms, standards and future.
This wouldn’t fix everything, but it isn’t lipstick either. Until unions take responsibility for the things they can control, they aren’t going to be perceived as relevant to most American workers. I wouldn’t want to join an organization which claims to be (or seems to be) powerless about the very problems about which I seek its counsel and protection, either. (I say this as a member of the Washington-Baltimore Newspaper Guild, Communications Workers of America, Local 32035)
I’ve tried to focus these thoughts on areas where unions are solely responsible (internal bureaucracy/governance). But there are other areas where unions are, or could be, jointly responsible. Public pension investment, for example. A co-worker yesterday asked me, rhetorically, “Who thought it was a good idea to invest public pension dollars solely in the private sector, without government regulation? Why didn’t the unions stand up and say, there needs to be a framework for how this is invested? It is the public’s trust but it’s governed by Wall Street.” Failing to raise that question soon after the Taft-Hartley Act was passed (or any time before the Great Recession) is a factor in pensions becoming a huge liability for public employers. Wall Street treated pension funds like slush funds in ways that no state treasury could ever be abused.
In a similar vein, why are mandatory subjects of bargaining limited to wages, hours and working conditions? Why are unions NOT required to bargain about industrial and employer issues? If an employer has a problem, they currently solve it in a vaccuum without any input from the union other than (1) don’t lay off our members or (2) don’t cut our wages/benefits. What if an employer said, “Hey union, look at this pile-of-shit problem I have. It’s yours, too. You must solve it with me.” This actually happens on the boards of some Taft-Hartley benefit plans and in some labor management partnerships (and some other countries) but by and large, unions are like petulant teenagers, grieving everything and demanding bigger allowances. Outside of apprentice programs (operated separately from unions), very little thought is given to the state of the workers’ crafts or the state of the industry in which they labor.
Scott Walker and the state of Ohio have actually played this wrong. By trying to eliminate collective bargainig, they’ve reminded workers of what they wanted all along. If Walker had demanded that the unions be jointly accountable for Wisconsin’s budget problems and had them sit at the table, he either would have had a partner in solving his problems or he would have been able to demonstrate that the unions are incapable of true collective bargaining. The only party that loses that gamble is the unions themselves. . . .