Preparing for Janus, Part 1
Posted by The NCCFT Executive Committee
In June, the Supreme Court is expected to rule in the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31. As we’ve been telling you (here and here), this case could have devastating consequences for organized labor throughout the United States. You’ll be hearing more in future posts about precisely what those consequences might be; where the right-to-work (for less) initiative draws its financial and ideological support from; what our parent organizations, NYSUT and the AFT, are doing to respond effectively should the Court’s decision go against us, as we expect; and, along with what the NCCFT is doing now, what we’ll need to be prepared to do in the future.
At stake in the Janus case, you’ll recall, are the fair-share (or agency) fees that a union collects from bargaining-unit members who have not joined the union, but who are nonetheless covered by the union contract and whom the union is still legally required to represent. The Janus case is the latest in a decades-long series of right-wing legal challenges to the fair share/agency-fee rule. At the heart of these challenges is the idea that compelling non-union members to pay a fair-share fee compels them to support the union’s political and ideological goals, in violation of their First Amendment rights to free association. That argument–and how those who’ve brought the Janus case are using it as cover to achieve what are essentially union-busting goals–deserves to be unpacked in some detail, and we will do so in a future post. For now, just keep in mind that it’s been settled law in the United States for the last 40 years that agency-fee payers can request a refund of that portion of the fee that would otherwise help pay for a union’s political activity. In this post, because we believe it’s important for you to be as fully informed as possible, we’re going to focus on where agency fees come from and their place in federal and state labor law.
In 1935, the National Labor Relations Act (NLRA) guaranteed three basic rights to private sector employees: the right to unionize, the right to engage in collective bargaining for better working terms and conditions, and the right to engage in collective action, including, if necessary, going on strike to achieve a fair contract. These rights exist in the context of four, interconnected mandates designed if not precisley to harmonize the relationship between labor and management, then at least to establish a framework for keeping those relations as smooth and efficient as possible, even when the two sides are enmeshed in the most difficult of conflicts. These mandates are:
- Mandatory recognition: Once a union demonstrates it has the support of a majority of workers in a workplace, the employer must recognize that union. The employer cannot, as was once the practice, set up its own union; nor can any other union claim to represent the employees of that workplace.
- Mandatory representation: Once a union has been recognized, all members of that barganing unit, regardless of whether they supported unionization or not, are legally required to accept that union’s representation. In return, the union is obligated by law to represent in its collective bargaining and in protecting unit members’ contractual rights and benefits even those who choose not to join. This is usually called the “duty of fair representation.”
- Mandatory Bargaining: During contract negotiations, both the union and management must bargain in good faith. In terms of the law, this is not just a matter of being honest. Both sides must be ready and willing to demonstrate that they are negotiating with the full intention of reaching an agreement.
- Mandatory Support: All members of a bargaining unit, whether or not they have joined the union, are obligated to pay their fair share of what it costs the union both to negotiate a contract and meet the requirements set out under the duty of fair representation. These are the agency fees that the plaintiffs in the Janus case are contesting. An agreed upon formula is used to determine what percentage of regular union dues an agency-fee payer does not have to pay if he or she doesn’t want to.
Public sector employees, including state employees like us, were excluded from the NLRA. Indeed, it wasn’t till 1967, with the passage of the Public Employees’ Fair Employment Act, popularly known as the Taylor Law, that public employees in New York State won the collective bargaining and other rights that the NLRA had extended to those who worked in the private sector. It’s worth remembering how the Taylor Law came to be.
On New Year’s Day in 1966, 35,000 members of the Transit Workers Union violated the 1947 Condon-Wadlin Act by going on strike for 12 days. Mayor John Lindsay ended the walkout by agreeing to a generous settlement with the union and getting the state legislature to pass a retroactive waiver of Condon-Wadlin, under which the striking workers would have been fired, and those who were reinstated subjected to a three-year salary freeze. The chaos that strike caused among the general public motivated Governor Nelson Rockefeller to charge a blue-ribbon panel with making legislative proposals that would shield the public from such chaos in the future, while at the same time protecting the rights of public employees. The man who chaired that panel, and who gave his name to the law that resulted from its recommendations, was George W. Taylor.
When it was passed, the Taylor Law did withdraw from public sector unions one of the rights the NLRA guaranteed to unions in the priviate sector, the right to strike. At the same time, though, the Taylor law enshrined in public employee labor relations its own version of the four mandates listed above. What right-to-work (for less) proponents have figured out, and what the plaintiffs in the Janus case are hoping to capitalize on, is that the weak link among those mandates, the one that is most easily challengable, is the agency fee. More to the point, they have figured out that if they can undo the legal reasoning that supports the agency fee, they will have opened up a potentially devastating avenue of attack on organized labor itself, one that we need to be ready to defend against.
More about that in our next post.