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The “Janus” Decision

In June, The New York Times published an opinion piece by Bryce Covert in response to the Supreme Court’s “Janus” decision that prohibited public-sector unions from continuing to collect “agency fees” from public employees who opt not to join the union.  Her take was that, with the diminution of union power that the decision would foster, it was time for workers to take to the streets in wildcat actions.  I wrote the following letter to the Times editors as a quick and, admittedly, glib response.  Neither it, nor any others on the subject were, as far as I know, published.

I am neither unaware of, nor completely unsympathetic to, the issue of “free riders”, people who do not join the union and pay its dues but who, nonetheless, receive the benefits the union has to offer: the the wages, benefits, and working conditions negotiated by the union and its representation in the case of grievances.  That is, of course, the problem that “agency fees” are intended to address.

It is however, also a problem entirely created by laws — laws specifically designed to enhance the power of unions and with the effect of constraining the freedom both of employers and would-be employees — that mandate employers deal only with the union when negotiating terms of employment and that prohibit non-union employees from making or accepting separate arrangements.  Yes, free-riders receive the benefits of the union’s effort; but they do so only because the law specifically prohibits any other outcome.  The law has granted unions a monopoly control over the terms of employment.  Some might consider having to deal with a bit of free-riding a modest cost to pay for that privilege.

But I am also sympathetic to the argument made by Mr. Janus and his supporters: that, in the case of public-sector unions in particular, the boundary between collective bargaining on behalf of employees and advocating for public policy in the political realm is so permeable as to be effectively non-existent.

At a minimum, wages, benefits, and working conditions for public-sector jobs, and the number of such jobs available, inherently reflect political preferences about how, and how much, public resources are to be allocated to the variety of public purposes government fulfills.  Demanding specific terms for employment in public-sector jobs cannot but have at least an indirect effect on the public policies such jobs are intended to support.

More to the point, public sector unions, far from limiting themselves to simple negotiations with their public employers, insert themselves explicitly into that political process: by working actively to influence the identity and attitudes of those employers through the expedient, and overtly political, act of spending money and labor to either elect or defeat them at the polls; and by lobbying actively, both directly and through financial support to other “advocacy” groups, for public policies that would expand the number of resources allocated to public purposes and would direct those resources preferentially toward purposes that benefit the union and its employees.

Mr. Janus argued that the “agency fees” he was forced to pay to the union were used, in effect if not by actual intent, not merely for collective bargaining on his behalf but for political advocacy of things that he contested.  That is, he argued the union, with the backing of the law, was forcibly extracting money from him that it then used to support political causes he abhorred.  He may have been exaggerating that.  He was not hallucinating it.

Interestingly, several days after Ms. Covert’s opinion piece, the Times published another story on the front page, reported as news but clearly shaded to induce a reflexive sympathy for the new plight of unions among typical Times readers, about how the “Janus” decision would likely result in a significant decrease in union financial support for various “progressive” political advocacy organizations.  To their credit, even many of those readers, in their posted comments, acknowledged the irony in that report: if the loss of legally-enforced collection of “agency fees” results in a meaningful reduction in political advocacy, wouldn’t that suggest the “agency fees” were, in fact, being used for political advocacy rather than strictly for collective bargaining?  Would it not suggest, in fact, that Mr. Janus and the Supreme Court were right?

27 June 2018

Ref: “Workers Must Get Radical to Fight Back Against Janus” (Bryce Covert, 6/27/2018)

Actually, all workers need to do to fight back against the “Janus” decision is to continue to join and maintain membership in unions, despite the fact that they are no longer compelled to do so by an act of law.

If, as claimed, that decision results in a significant reduction in union membership, one might reasonably ask why the unions were unable to convince the departees that continued membership was worthwhile.

Perhaps, in that case, the problem is with the unions and not with the law or with the Supreme Court’s interpretation of it.

© Copyright 2018, Augustus P. Lowell

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