Anthony Kennedy didn’t just retire, leaving an opening on the Supreme Court. He left after a series of decisions by the Court that served as reminders his “swing vote” didn’t always swing their way.
One that the media particularly angry is his decision in Janus v. AFSCME, in which the court ruled workers cannot be compelled to join a union, even if they are required to pay only for bargaining and not for political activity.
With that, “the Supreme Court has just imposed a right-to-work regime on public workers everywhere in the country – a profound blow to the union movement,” Vox wrote.
The old system involved “fair share” fees, Vox wrote, in which those who work for the government are forced to join public-sector unions and pay them for the costs of collective bargaining but did not have to pay for the union’s political program.
“The system balanced a range of critical rights and interests,” Vox wrote. “It respected every individual worker’s right not to become a union member, and each individual worker’s right not to subsidize political activity with which she disagreed. But it also aimed to prevent workers from free-riding on the dues paid by other workers: because unions must, by law, represent everyone equally, if there’s no requirement to pay your fair share, then unions would end up providing costly representation to lots of people who decided not to pay for it.”
Public-sector unions now “will face a funding crisis that threatens their very existence,” Vox wrote, suggesting the Court should have weighed that in.
Perhaps they did, Vox wrote in the following paragraphs.
“There should be no mistake: This decision is the culmination of a sustained attack by political forces determined to destroy the labor movement and undermine the movement’s capacity to counterbalance corporate economic and political power,” Vox wrote.
“By throwing out a system that lasted for more than 40 years, it has ushered in a period of uncertainty for state and local governments that want to provide efficient and effective services.”
Vox suggested some workarounds.
It says union employees now make 17 percent on average more than their non-union counterparts, but it actually is more like 15 percent because they pay 2 percent to their unions in dues. The court ruled the 2 percent was “compelled speech” because employees had to pay it and thus seem to endorse union actions.
“But if public employers simply paid the 2 percent directly to the unions – giving the same 15 percent raise to employees but not channeling the extra 2 percent through employee paychecks – then there would be no possible claim that employees were being compelled to do anything, and thus no constitutional problem.
“To be clear, nothing of substance would change: Workers would still get the same 15 percent wage premium, the union would still get the same 2 percent, and the public employer would pay exactly the same amount.”
So, the current relationship between governments and their unions is not sufficiently cozy; now Vox calls for government to make direct payments to them.
It also called for states to make it easier for unions to reach new workers and explain to them the benefits of joining the union, such as the New York law that requires employers to set up a meeting between new workers and union officials within 30 days of the workers being hired.
Others include having state and local governments contract with their unions to run benefits programs or provide training.
“Whatever specific reforms move to the fore, the Janus decision will test whether state legislatures and executives recognize that public sector unions make government work efficiently and effectively for citizens – as they indisputably do. Teachers this year have shown us the power that public sector workers possess, even in states hostile to unions. Unions inspired elected officials, workers and communities to recognize the relationship between the quality of public sector jobs and the quality of public services.”