Employee Rights and Employment Policy Journal
For labor, 2018 was a year of highs and lows. A wave of teachers’ strikes in states traditionally hostile to public sector labor unionism and collective bargaining garnered widespread popular support. The passions animated by the strikes were credited with inspiring a range of progressive political shifts, including the rollback of right to work laws in Missouri and new challengers running on education platforms aimed at increasing investment in public education. Less than three months later, the Supreme Court issued its decision in Janus v. AFSCME, Council 31 invalidating agency fees that public sector unions relied on to cover costs related to collective bargaining, contract administration and grievance adjustment. Janus was a major blow to union coffers, to the Democratic Party as a recipient of labor union funds, and to other progressive causes historically supported by labor.
These developments should prompt us to rethink what labor solidarity really means. American labor law encourages unions to identify as service organizations dedicated primarily to promoting workers’ economic interests. Under the agency fee doctrine approved by the Court in Abood v. Detroit Board of Education, for example, it was constitutionally permissible for unions to negotiate agency fee arrangements by which non-union members within the bargaining unit could be required to pay a service charge to the union to subsidize the cost of collective bargaining and contract administration, as long as chargeable fees were limited to expenditures “for the purposes of collective bargaining, contract administration, and grievance adjustment.” Straining to salvage union funding, the unions argued in Janus that compelled subsidization via agency fees did not implicate workers’ First Amendment interests because the union’s speech at the bargaining table and in contract administration contexts dealt only with “prosaic” “‘bread-and-butter’ employment issues” rather than with significant matters of public concern. Thus, the unions’ arguments in Janus embraced a vision of solidarity in which unions function as economic agents engaged in transactional relationships with workers over a narrow range of economic subjects, rather than political entities advancing issues of common concern to workers and the public, such as the trend of state disinvestment in public schools and its impact on democratic participation.
At a legal level, the arguments raised in Janus are not surprising. But turning the future of public sector unionism into a battle over money was short-sighted. Subsequent proposals to bring back agency fee arrangements in another form make worker engagement largely irrelevant to union survival, undermine incentives for internal union democracy and a participative culture, and eschew the kind of grassroots solidarity that has historically been the source of workers’ power. Labor’s greatest successes in 2018 demonstrate the power that can arise from grassroots mobilization of workers and citizens alike in a movement that transcends workplace boundaries and politicizes workers’ struggles. In some ways, the Janus Court got things right: public sector unions are political entities, they do (and should) engage in advocacy for reform that transcends bread-and-butter employment issues, and funding should come from workers and others who support those agendas. It is time to divorce the need for funding from the meaning of solidarity and to relinquish the vision of unions as service organizations that has indirectly cabined labor’s mission, undermined incentives to do vigorous internal organizing and to work toward members’ full engagement, and contributed to an outsized reliance on law -- particularly the exclusivity doctrine and the principle of majority rule -- as the source of worker power.
Unions should not allow solidarity to be defined by money. Especially in a time when labor unions are under siege, unions must stand for more, not less. They should embrace their political identities rather than seeking to avoid or deny them. Ultimately, law reform will follow the moral legitimation of labor’s demands, not precede it.
Labor, Labor Unions, Labor Law, Work
Marion G. Crain & Ken Matheny, Labor Unions, Solidarity, and Money, 22 Employee Rts & Employment Policy J. 101 (2018)
Labor, Labor Unions, Labor Law, Work
Crain, Marion G. and Matheny, Ken, "Labor Unions, Solidarity, and Money" (2018). Scholarship@WashULaw. 150.