On Jan. 10, the U.S. Supreme Court heard oral arguments in the case of Friedrichs v. California Teachers Association. This legal challenge to public employee union “agency shop” fees — strategically engineered by conservative and libertarian interests —could deliver a body blow to what remains of organized labor as we have known it.
Under its 1977 decision in Abood v. Detroit Board of Education, the court found that the First Amendment prohibits individuals from being compelled to join a labor union.
However, the court also recognized that existing guarantees of equal treatment in the workplace for union and non-union workers had the capacity to allow the latter to “free ride” the benefits secured by unions. So, it made a distinction between political activity and actions focused on working conditions and ruled that a fee could be exacted from non-members to cover the cost of collective bargaining.
The plaintiffs in Friedrichs argue that this differentiation is artificial and that all public sector union activity is inherently political. Therefore, non-members should not be required to pay anything if their First Amendment rights are to be fully protected.
While it’s always hazardous to handicap the Supreme Court’s future decisions, most observers think that this court’s majority is ideologically predisposed to agree with the plaintiffs and will overturn Abood.
Regardless of the judicial politics of the matter, several states already have legislatively stripped public employee unions of significant legal rights that, in practice, limit their ability to effectively represent their members specifically and the public workforce in general.
Private Sector Decline
The trends are there and have been for decades in the private sector workforce, where union representation stands at only 6.6 percent according to the U.S. Bureau of Labor Statistics. It’s 35.7 percent in the public sector, which makes the latter an obvious target for those contemptuous of, or just unconcerned about, the well-being of ordinary workers.
Historically, it was the union movement that courageously stood up against the gross exploitation of workers that was often enforced with violence perpetrated by or on behalf of employers.
Among many advances, unions secured for workers the 40-hour work week, an end to child labor, a degree of economic security and improved safety on the job.
But with time, in some instances union overreach combined with corporate mismanagement to threaten the survival of some companies and industries. Several unions succumbed to corruption or feathered their own operations, to the detriment of the workers they were presumably protecting. Consequently, public perception of the union movement suffered.
Success Breeds Resentment
However, what seems to rile conservatives and libertarians most is the recent effectiveness of public employee union political activity.
In New York, the Taylor Law prohibits strikes by public employees and exacts a draconian fine from each should they do so.
During the periodic bouts of high inflation in the latter third of the 20th century, the inability to strike meant public sector workers lost considerable financial ground when their negotiated raises continually fell far short of the rise in the cost of living.
The unions learned from industry and the corporate sector that gains could be had by donating time and money to political campaigns. In order to improve their standing with legislative members who have final say over their contracts, the unions began to emphasize the same tactic.
Their success — and the relative steep decline in the status, salaries and benefits of non-unionized private sector workers — have placed public sector unions in the cross-hairs of those who see the comparison as unsavory. Unfortunately, many in the electorate and private sector workforce have taken the same view, jealous of their public sector compatriots’ achievements and choosing to clamor for their curtailment rather than finding ways to insist that their own situations be improved.
New Model Needed
Nonetheless, the die has been cast and it is unlikely that the now decades-long trends working against unions can be reversed, given the realities of globalization, workplace automation, “regulatory capture” (that is, overweening industry influence over the government agencies ostensibly created to regulate it), and numerous competitive pressures.
Still, many find their working conditions and standard of living stagnating or worsening.
With unions in protracted decline, workers require new avenues for the representation of their legitimate interests in this brave new world of work.
This is a tall order, requiring a paradigm change from the outmoded adversarial model currently built into our labor laws and practices. Paradigms don’t shift easily or overnight.
However, the changing nature of work, the constant need for greater efficiencies and the counter-productiveness of conflict demand that we rethink and dramatically improve upon the current prevailing relationship between labor and management.
How? That’s a topic for a future essay.
John Figliozzi of Halfmoon is a regular contributor to the Sunday Opinion section.
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