National Right To Work Legal Defense Foundation Files Brief Supporting West Virginia Right To Work
West Virginia Worker Submits Amicus Brief to State Supreme Court Defending Right to Work Law Against Union Boss Lawsuit The…
by Ben Johnson (recent past President of the Vermont State AFL-CIO and American Federation of Teachers unions)
I support Right to Work. Nationwide in the private sector, in the public sector, in any other sectors that unions create, full stop. I spent the last decade as treasurer, then president of AFT Vermont and for three years president of the Vermont AFL-CIO, and I think it’s time to eliminate unions’ right to collect mandatory agency fees from non-members. That’s what the ‘Right to Work’ bill in Congress would strike down in the private sector, and that’s what I hope the US Supreme Court strikes down for the entire public sector next term if it takes up Janus vs. AFSCME, heard in the 7th Circuit Court of Appeals March 1st.
Vermont is Bernie Sanders country, the state where cows outnumber people and leftist sects seem to outnumber both. I ran against opposition in nearly all of my elections, and I have always had only two planks in my platform: organize more workers into the union and make the union stronger. For almost ten years I spoke union words, thought union thoughts, and fought union fights. I banged the gavel down on my last union convention about six months ago, and I’ve already recovered a good portion of my sanity and moral bearings. I count this essay as evidence of the latter.
Those sorrowless years taught me to view the world solely in terms of power, and I well understand why. Unions live in a hostile Hobbesian wilderness, both in politics and the workplace. Kill or be killed is the most useful guide to action you will find while you’re there. I believe unions create the wilderness wherever they go, then marvel that they never find their way out.
When I was a union officer I was always ready to assure anyone who asked that we don’t make anyone pay dues. No, of course not. It’s only ‘dues’ when you want to pay it. When you have to pay it, and you do if you want to keep your job, we call it ‘agency fees’. Nothing like a bureaucratic euphemism to soothe the conscience.
Forced dues, fair share fees, agency fees — whatever name you wish to use, they were central to the project that dominated my time at AFT Vermont. We won a hard-fought five-year legislative campaign to create the right to organize childcare workers using a strategy that depended for its very life on our ability to collect mandatory fees from providers who didn’t want to join the union. We saw the Supreme Court eviscerate that plan in 2013 when Harris v. Quinn struck down our right to collect those fees. We then made our own defeat final by losing the union election among the workers.
My views are complete apostasy for a former union president, so I’d like to share my thinking by walking you through three different kinds of train wrecks agency fees create.
First I’ll take up the normal situation where agency fees come up in local unions all across the country. This will be the kind of example union attorneys will fill their Supreme Court briefs with. Then we’ll look at the surprising role the fees played in our childcare campaign in Vermont, and the outrageous way SEIU rode free on the backs of non-members in California.
* * * Plain old forced dues
When a union successfully organizes a group of employees, the race to bargain a first contract begins. Nearly every union contract covers all the employees in related jobs, called the ‘bargaining unit’, whether they are members of the union or not. These bargaining unit contracts name the union as the exclusive representative of all the employees in matters related to wages and working conditions. That means the union wins the right to bargain for all the workers, members or not, and it also carries with it the duty to represent them all, members and non-members alike.
That imposes a burden on the union in terms of staff time, legal advice and so forth, unions argue. Typically a high priority by the union staff working on the first contract is to win the right to collect a fee from non-members in the bargaining unit to offset the burden. Union organizers call these provisions ‘Union Security’ clauses, and in their strongest form they include language from the old days of truly closed shops, where ‘It shall be a condition of employment’ to actually join the union. That was too great an assault on free association, so nowadays the strongest language can only require non-members to pay an ‘agency fee’ to the union.
On its face there is something screwy about the idea that an employer can take money from your paycheck against your will and give it to a private third party that you may want nothing to do with, and whose very existence you may oppose on philosophical, financial, or strategic grounds. It seems patently unjust.
For 40 years the court has stuck with its 1977 Abood decision giving public sector unions the right to collect these fees. The Court found then that the danger of the ‘free riders’ outweighs the forced association and forced speech suffered by the non-members. Unions argue that it is only fair to make these non-member free-riders pay their share. The union is obligated to give them the same representation it gives to all the members who actually pay dues, so why give people a way to get something for free? The duty to represent all the workers paints the unions into a corner, union attorneys say.
Except wait. Unions choose to bargain contracts that cover the entire bargaining unit, members or not. They could bargain contracts that cover only members, and leave non-members to fend for themselves. Instead, unions fight for the right to cover the whole bargaining unit, then make non-members pay for it. That’s fairness the union way.
Well, what business would turn down an absolute monopoly in the marketplace, particularly one in which it can then bargain provisions which make everyone a forced buyer? Good grief, no. Imagine what would ensue – the union would have to demonstrate value to the members. As it is, if the union wins the bloody war of attrition that characterizes most organizing drives and then goes on to win a first contract that covers the whole bargaining unit and includes agency fees, it only needs to be about as responsive to its members as the state-owned department store in Novosibirsk, USSR, in about 1958. No, the market is a cruel place, one that doesn’t coddle revolutionary daydreamers. Much better to stay away from it.
Ironically, one of the consequences union organizers fear most about the very idea of a members only contract is that it could kick-off a bidding war between the employer and the union, where the employer would lure workers out of the union by offering non-members greater pay or benefits. Well, now. Imagine that. The union then would presumably up its game to push the employer to pay union members even more. Don’t look now, but that would be a fine example of the union working, leveraging the collective power of its members for the good of all. In the union, silver linings always have a touch of grey, and the one in this story is that the employer will eventually offer employees so much to leave the union that it will wither and die completely. Given the alleged centrality of ‘democracy’ as a core union value, I find it hard to see that outcome, farfetched as it may be, as tragic. If there is no one left to cast a vote, well, the people have left the union.
* * * Childcare voters
In 2009 we started a project in Vermont to organize childcare workers. We were following a trail blazed by SEIU and AFSCME in states like Illinois. This was the leading edge of public sector union organizing: bring quasi-public employees into the union. There were thousands of individuals and centers providing childcare in Vermont and participating in a program where they would be paid a subsidy by the state to provide childcare for low-income families.
The program was a great way to help parents stay in the workforce by easing the burden of paying for childcare. The problem for the union was the providers were independent contractors and small business owners, not employees of anyone, really, and certainly not the state. Well, nothing in unions is easy. Our basic strategy was to start building the organization in the field and at the same time pass legislation saying that for the narrow purposes of bargaining over the subsidy rate and a few other things, the state of Vermont would be their employer and these providers would get an anti-trust exemption so they could bargain collectively. Presto Change-o! We create an employer and thousands of new potential members in a nice clean bargaining unit out of thin air!
The problem is that creating the thing on paper doesn’t actually create it in flesh and blood. Outside of more or less informal networks there was no real sense in which the providers were connected by anything other than the registry in Montpelier that listed their names so the state could pay them. Organizers worked hard to spin that straw into gold and create a real statewide community. Some of those valiant women in blue that I will never forget dared to dream that dream, but it wasn’t enough. We knew we would never see more than probably 10-20% of them sign up as members. They were spread across the state, house by house. To visit all of them even once a year took an enormous expenditure of time and money.
We would never be able to really create an organization out of that. If it were going to work, we would need agency fees baked in. To even be able to fund one staff person for the whole state we would need to set dues fairly high for those few members as a baseline and then collect 85% of that in agency fees, in a check cut directly from the state to the union.
If you think that scheme doesn’t have much in common with the normal agency fee case I laid out earlier, you’re exactly right. Of course it doesn’t. It uses agency fees as a strategy to build a union that we never even dreamt would be supported by a majority of the providers. In fact, it is more likely true that even if we had succeeded at any given time a majority of the providers would not even have known there was a union.
The nightmare irony is that for most of the five years it took to pass the legislation we were regularly accused of creating a plan to get rich off the providers. The truth is that the plan would never have done more than possibly just pay for itself, maybe.
So why did we do it? Two reasons. First because it was a way to bring thousands of low income women into the union. The real value proposition to the union, though, was that because they would be covered by the contract we could communicate with them on politics. And because they each saw 5-6 families a day through their childcare businesses, they could help us create a powerhouse political machine that could reach every nook and cranny in every corner of the state. Do you scoff at an army of childcare providers? You do so at your peril. It would have been beautiful.
Well, the trail SEIU and AFSCME blazed lead straight into the Supreme Court. In 2013’s Harris v. Quinn the Court said these agency-fee based quasi-employment arrangements were transparently bogus and unions couldn’t strip-mine them for agency fees. When the decision was announced I felt all the air go out of the entire R&D departments of several national unions. This was worse than if these new childcare unions had never existed, because now the parent unions had these contracts to administer and some few numbers of members to represent and additional zombie unions on the roster.
On the day after we lost our election among the childcare workers I got a call from an organizer in a different union that had won a similar election. We were better off, the organizer told me, becuase they won but they only had 10% membership and they still had to deal with the whole unwieldy thing. That’s what you get when you build a strategy for an organization on top of what is supposed to be just a fee to cover a few free-riders. A shambles made of hot air.
* * * Free-riding in California
It gets worse.
Incredibly, SEIU local 1000 made non-members and members alike pay a special fee in advance to fund its massive public statewide campaign around Governor Schwarzenegger’s 2006 ballot propositions. They took the money from the non-members paychecks, then later, after the elections were over and the union’s side prevailed at the polls, the union gave the non-members a chance to get their money back, the money that they had in essence loaned the campaign, interest-free.
These were controversial ballot questions, which no doubt many of the nonmembers opposed. The union even decided that much of this ‘lobbying the electorate’ was a chargeable expense. You know, just a normal part of bargaining the contract.
See the logic?
Premise 1: Our job is to get good contracts.
Premise 2: Our employees are paid by tax dollars.
Conclusion: Therefore anything political the union does related to state revenue and tax policy is relevant to our bargaining and a chargeable expense.
The Supreme Court didn’t buy that logic either. In its 2012 opinion in Knox v. SEIU the Court found that the union was far out of line. The idea that the union could forcibly borrow the non-members’ money and use it to fund a campaign many of them opposed, and do so in the name of fair play, is grotesque.
Unions in the public sector have been increasingly involved in important questions of public policy. As membership organizations with a direct interest in these questions they are quite right to do so. But these are political questions, root and branch. Participation should be voluntary, by the members alone.
* * *
I don’t expect to bring around to my way of thinking any union officers or staff still in the wilderness. To them the words and arguments I utter are only tools the forces of capitalism use to bust the union. In the union view the only analysis that counts is the one that says without bargaining unit contracts and agency fees unions will be weaker. Once you see the result is weaker unions, then it follows that the arguments are nothing but the buzzing of the saw that cuts down the workers. It’s a rough-cutting blade that saws through all, and afterward you’re either standing on the union side of the cut or the Power side of the cut.
I’ve left that wilderness, and so I’m free to be a private citizen, and to say things just because I believe them to be true. I am no longer willing to view the world in terms of power alone. For those outside the union world and for the dedicated rank-and-file members, shop stewards and activists, I ask you to consider Right to Work and agency fees through a different lens than the union’s. The union lens is polarized. It blocks out the knowledge that in the name of abstract liberty you do violence to the real freedom of your fellow citizens, your coworkers.
Bargaining unit contracts and agency fees themselves weaken unions far more than the dollars they bring in strengthen them. They make strong-arm hoods out of union activists, and they put the organizations at war with the people they exist to serve. At least with its own members, and I include agency fee payers, it’s time for labor to deny what one prominent union leader called the persuasion of power and return to the power of persuasion. Acknowledge bargaining unit contracts and forced dues for what they are, subsidies you take by force from your coworkers who don’t want to join your union. Consider that mugging them may not be the best way to lure them in. The truth is that if your union is worth its salt is has nothing to worry about.
It’s time for the Congress to pass Right to Work legislation for the private sector. It’s time for the Supreme Court to see the mnster it created 40 years ago in the Abood decision, and put that monster out of its misery. Disingenuous appeals to fair play and free riders are not worth it.
It’s time to see if unions can survive on their own, by persuading non-members to join. Perhaps those in the higher echelons of the national unions already have a grim suspicion about the answer and are petrified to have their fears confirmed. I saw the panic that set in among union leaders after the disastrous oral arguments in Friedrichs v. CTA at the Supreme Court last year, when the death of Antonin Scalia left the court divided 4-4.
If the labor movement can only survive on intravenous transfusions of forced dues and bargaining-unit contracts, then the system that never really thrived is truly brain-dead. It’s time to find out. There is nothing to be afraid of in the death of an illusion.
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