Janus: The Aftermath

“After Janus,” by Catherine L. Fisk and Martin H. Malin  offers a lens for determining the efficacy of the many proposed solutions to the problems created by the Janus decision.1  The bottom line is that solutions  must address the collective action problems created by Janus.   The authors assert that the Janus Court “misstated the nature of the collective action problem.”  Yes, the  Court acknowledged the problem of free riding. Free-riding can occur after Janus because there will no longer be a required payment of agency fees for non-union members subject to the collective bargaining agreement, yet they remain  eligible to receive the benefits entitled them under the union’s legally required duty of fair representation. But the Court failed to see the larger collective action problem, which is that without some way to require all who receive benefits to share the costs, “unions will not negotiate effectively in the first place so there will be no common goods to free ride on.” If the union can no longer compel fair share fees, it becomes “rational” for  employees not to join a public sector union at all. Any proposed solution for public sector unions must address these two problems.

The authors catalog the various approaches to  the post-Janus world  within one or the other of  four groups. The first group consists of solutions that rely in whole or in part on members-only representation: those who do not join the union 1) are not represented by the union in the grievance process and 2) are not covered under the unions’ contract with the employer. A modification of the approach is where all employees are covered by the contract but only the dues-payors have representation rights from the union. Fisk and Malin find that “The limited experience with members-only bargaining and with forms of bargaining that limit subjects of union bargaining and allow individual contracting, in addition to union bargaining, are fraught with problems for the employees and the employer.” Based on experience in Florida, Tennessee, California, Nevada, and Nebraska, it appears that union density has declined when there is members-only representation. 

Moreover, Fisk and Malin champion the notion of exclusive representation, as opposed to minority unions,  on theoretical grounds. For them, the bargaining power of the collective is greater than the bargaining power of the individual, and that comes from the elimination of competition among workers. Such competition drives wages and working conditions down. In other words, “exclusive representation” is the legal concept of worker solidarity that is at the heart of the union movement.

Regarding the members-only approach to grievance handling, Fisk and Malin are less dismissive. To  make non-union members pay the costs of union representation in the grievance and arbitration process does address  the free-rider problem, It fails however, to address the underlying collective action problem of providing a common good. Despite the union’s right to charge a fee on a pay-as-you-go basis, it remains rational for employees not to join a union. Why? Fisk and Malin reason that most employees see themselves as “good employees” and  not likely to be disciplined or fired. Joining the union under these circumstances,  which requires of them a regular dues payment, becomes in essence akin to an employee buying an insurance policy with a monthly premium as a hedge against employer discipline. Most employees will consider it not worth it. The employee would rather take the risk that no employer discipline will ever happen to him or her, and even if it did, would prefer to pay for representation only at the time it is needed. Thus, Fisk and Malin find these approaches wanting.

The  second grouping consists of “cost-shifting” arrangements whereby the employer helps offset some of the union’s costs, One example is being tested in Hawaii. The state government will create a “collective  bargaining fund” in the state budget, and the union can claim reimbursement from it for its costs of representation. This state fund construct, though, is subject to the vagaries of political and partisan changes in the elected government. And it needs to be structured in such a way as to not be perceived as an illegal employer contributions to a union, (banned in some states and by the NLRA in the private sector). These cost-shifting approaches suffer from the obvious risk of political change where pro-union or anti-union parties may influence the way the fund works. In the worst case,  such funds may be open to political  corruption. Thus Fisk and  Malin find these arrangements risky.

A third grouping consists of approaches  that limit opportunities for enrollment and more importantly, withdrawal.  It is found in New Jersey, where a new law addresses the question of when an employee is allowed to leave the union. Janus proponents assert that leaving  should be allowed at any time. New Jersey justifies its new union enrollment law based on the uncertainty in budgeting that anytime exit would create. The old law is amended to allow revocation of membership only during a ten-day window once a year, rather than the previous  law’s anytime revocation. The new law does speed up the effective date of any revocation by allowing it to be effective in 30 days rather than the previous law’s July 1 or Jan 1 effective dates. Fisk and Malin are critical of such approaches for inviting further legal challenges not to mention that it does nothing to encourage employees to join a union.

Fisk and Malin offer their (preferred) fourth group of solutions. The authors claim these solve both free-riding and the collective action problem almost as well as the agency fee did. Group four’s starting point for what the authors describe as strategies to address the collective action problem that rely on “strengthening solidarity” recommends public sector application of existing private sector labor law’s treatment of “religious objectors.” Federal labor law under the NLRA grants religious objectors  the right not be charged union dues if they have some religious objection to supporting labor unions. Objectors  must make an equivalent payment to a charitable organization whose goals thay agree with.

The religious objector model could be applied in the public sector, But because the  union still receives no revenue from the objector, forcing objectors to donate to non-profit organizations does nothing to alleviate the free-rider problem. and must be combined with the first group’s approaches to charge for representation. But, the religious objector model in the public sector solves the collective action problem because employees of the bargaining unit cannot avoid paying  union dues or its equivalent in the form of a donation. Thus it remains a rational economic decision for employees to join the union. It also  addresses the constitutional issue raised by Janus, that is does not compel speech, as the employee can choose an organization to their liking. Yet, problems could arise in the choice of the list of non-profit organizations, the A non-member could still find the entire list objectionable thus forcing such a donation might  be construed as compelling speech and a violation of first amendments rights, if the organization donated to is “expressive,” i.e., one that is engaged in speech.  To mitigate this concern. Fisk and Malin suggest  the approach used in Portsmouth, New Hampshire. There, non-profit contributions are made solely to a non-expressive school scholarship fund. This should reduce the risk of lawsuits against such arrangements on first amendment grounds.

These preferred  “group four” solutions should also allow unions easier and more frequent access to potential members in order to explain the benefits of joining a union, thus enhancing solidarity and helping to solve the problem of a weak union being unable to provide a common good. The union will be more effective with more members. An example: a union was allowed to use school property, the school ‘s  teacher mailboxes, for outreach to employees. 

Karen Fernbach, in “Will Public Sectors Union Survive?”2  is impressed by labor’s response to  the Janus decision, as she notes “Anti-union advocates might have been expecting a meow, but what they got was a roar.” Fernbach,  former Director of the NY Regional Office of the National Labor Relations Board, cites the rise of activism among West Virginia and Kentucky teachers and the recent sound defeat of a Right -to-Work proposal in Missouri as further evidence that the public sector labor movement is not going to roll over.

Fernbach credits the unions pre-emptive strategies. Since 2014, public sector unions have been gearing up for a possible loss of the right to charge fair share fees and the attendant possibility of an exodus of members. The effort began long before the Janus case came on the scene. The strategy has relied on increased member engagement through social media, union meetings, mailings, telephone calls, and even door-to-door visits. All this being an attempt to explain to the members and even fee-payors the benefits of a labor union.

Fernbach also suggests that there is evidence that members-only representation can work, In New York, shortly before the Janus decision, the Cuomo Administration was able to pass  legislation which eliminated the requirement that public sector unions represent nonmember employees in the grievance/arbitration  process. While court challenges may arise, Fernbach notes that the Janus Court wrote that such a change would be one approach that unions could use to mitigate the free rider problem. She finds, at least in New York, that   Janus is not causing any significant loss of membership.

Fisk and Malin rejected approaches that rely on minority representation in contract and wage negotiations, citing a likely negative impact on workers’ solidarity. On the opposite side are authors James Gray Pope, Ed Bruno, and Peter Kellman, In “Its Time for Unions to Let Go Of Exclusive Representation.” 3 The authors break with mainstream laborite thinking on exclusive representation and posit that, in the wake of the Janus decision, unions must consider the possibility of giving up that right in favor of what Clyde Summers called “minority status” within a worksite.  Exclusive representation means the union has no competition within the workplace from other unions: perhaps more assertive or more democratic unions. The result of the lack of competition has been: 1) more concessionary contracts, 2) majority white or male unions ignoring the rights and needs of people of color and women workers, 3) lazy and corrupt union officials, and 4) a lack of union democracy. Moreover the authors assert that it is exclusive representation that got us Janus in the first place, as majority unions were able to force dues or fee payments from all employees though they may have been ineffective, undemocratic or even corrupt.

The authors argue that having several competing minority unions in the workplace could perk interest in joining a union in the first place, so the loss of exclusive representation would not mean loss of solidarity. Defenders of exclusive representation worry about minority unions succumbing to employer domination, but the authors answer back that there is no shortage of company unions and business unionism under the current setup. 

The difference in behavior between what Summers called “majority and minority unions” may be less significant as first guessed. A union could still function while not representing all or even the majority of workers in a particular bargaining unit. See the example provided in this issue by Tom Lewandowski.

Lois Weiner, author and AFT member, dissents from much of the above positions in a different take on the dilemma and  solutions.4 Weiner emphasizes that the very language used by laborites and their allies has already contributed to the problems they’ve begun to recognize in the wake of the Janus decision. She objects to the use of the terms free-rider or free-loader to describe those members of the bargaining unit who drop out of paying dues or who never decide to do so in the first place. Weiner does not condone free riding, but empathizes with the sentiment expressed by many members of organized shops that unions are often “irrelevant” and unresponsive to membership concerns, pointing out that many of the Red State teacher strikes were organized anterior to the union if one was present. Criticism or even outright rejection of a particular union does not preclude militancy.

While the loss of dues is certainly a blow to union solvency, the alienation of many union members or agency fee payers is to be expected, given the near total conversion of big labor to the philosophy of business unionism, she holds. Rather than being a member-centric, grassroots-governed organization, unions have tended to model themselves externally as special interest groups and internally as a business or service provider. This means interacting transactionally with government or management, thus reducing what could be an opportunity to rally their membership around a campaign and keep them informed to simple horse trading. Likewise, when interacting with membership, the union services the worker, but doesn’t make sustained engagement with that member a priority and, may even discourage it in favor of a labor bureaucracy. It’s also difficult to convince a worker that they need a union when their wages have stagnated and when  they are shut out of  decisions on the political/economic orientation of the union.

For Weiner, labor must develop an entirely different weltanschauung with regard to both organizing and outreach to survive a Post-Janus world. This would involve an investment in  union democracy vis-a-vis how participatory union business would be. It would mean greater numbers of union staff positions be elected, not hired and decisions regarding political endorsements or budgetary allocations be made by membership vote. Unions would need to stop accepting the role designated them by their enemies. Organized labor should be neither a special interest or a business, but ingratiate itself to workers and make itself indispensable to them.

Notes

1. Catherine L Fisk & Martin H. Malin,  After Janus 107 CALIFORNIA LAW REVIEW (forthcoming 2019)

2. Karen Fernbach, Will Public Sector Unions Survive?. REGIONAL LABOR REVIEW (Fall 2018)

3. James Pope, http://inthesetimes.com/features/unions_exclusive_representation_janus.html

4. Lois Weiner,“#FreeRider and #Freeloader Obscure Labor’s Challenges post-Janus, NEW POLITICS  (2019) 

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