Raymond Hogler, Ph.D. Colorado
(NATIONAL) – The
Supreme Court on Feb. 26 heard
arguments in a case that could deliver a devastating blow to
case concerns whether employees can be required to pay dues to a
union even if they don’t belong to it, a debate that is similar
to battles over so-called right-to-work laws that have swept the
learned in my
research on such laws, the significance of the debate is much
is another skirmish in the culture wars that pit individual rights
against collective ones. If groups such as unions lose the ability to
raise the funds necessary for collective action, I believe workers
will be worse off, and inequality will rise.
right to work
Act, passed in 1947 over President Harry Truman’s veto,
paved the way for the case currently before the court by allowing
states to prohibit compulsory union dues through so-called
a total of 28
states have done so, leading to a substantial
drop in union membership in those states.
v. American Federation of State, County, and Municipal Employees
case, which is backed by the National
Right to Work Legal Defense Foundation, could impose these
right-to-work rules on public unions throughout the nation.
labor experts believe that the court will rule in favor
of plaintiff Mark Janus, an Illinois state employee who sued the
union in 2015 because he had to pay a fee even though he never joined
that such a fee violated his First Amendment rights by
him to subsidize political views he doesn’t support.
is the core of Janus: the proposition that individual liberties
cannot be subordinated to political coercion that conflicts with a
person’s fundamental values. It follows from this line of
thinking that we should be able to “opt out” of such
collectivist demands as taxes and other laws, even when they support
the common good.
same principle is at stake in Masterpiece
Cakeshop v. Colorado Civil Rights Commission, which also
Supreme Court ruling. That case involves a Colorado baker who refused
to bake a wedding cake for a gay couple, arguing it would violate his
First Amendment right of religious freedom.
cases like Janus and Masterpiece Cakeshop would establish a
constitutional principle giving citizens the choice to “opt in”
to collective action rather than being forced to “opt out.”
both instances, the law will attempt to resolve the fundamental
conflict between personal values and social demands. The
opinion has important consequences for workers and their ability to
work collectively to negotiate for better pay or working conditions.
on collective action
assault on collective action in the U.S. isn’t new and goes
back to at least the early 19th century in fights over shoemaker
guilds, which obligated all tradesmen to support the
recently, in 2012, the Supreme
Court heard a case similar to Janus involving California
employees, who are required to pay a fee to the Service Employees
International Union as part of its representation of them in
collective bargaining negotiations. The union sought to collect a
special assessment to finance a political fund, and some employees
who weren’t members sued demanding a right to opt out of paying
the fee. The court agreed and ruled that employees must be asked to
specifically opt in instead.
majority opinion, written by Justice Samuel Alito, ran contrary to
decades of court
precedent on union security, as Justices Sonia
Sotomayor, Ruth Bader Ginsburg, Stephen
Breyer and Elena Kagan explained in separate opinions.
criticisms of the opt-in idea show how disingenuous it is. That’s
because it worsens the “free rider” problem, in which
people can attain all the benefits of group efforts without bearing
any of the costs. The kind of cooperation that is essential to a free
society can’t happen without collective action, as economist
Mancur Olson showed in his classic
study of public goods and organizational behavior.
the Supreme Court’s ruling on Janus adopts Alito’s view
that workers must always opt in to the costs of collective bargaining
agreements, it will inflict severe damage on labor organizations and,
as a result, on workers and many others.
such as economist Thomas Piketty provide convincing
evidence that declines in union power are correlated with
increases in economic inequality.
in the U.S., only about 6.5 percent of private workers belong
to a union, which is about the lowest in decades. That figure
higher in the public sector, at 34 percent, but if Janus topples a
central pillar of union support by undercutting the vital revenue
stream of dues, those organizations will begin to atrophy like
private unions. And mark my words, the American working class will
Raymond Hogler, Ph.D teaches
labor and employment relations at Colorado State University. His
most recent book is a study of American labor law and how it shaped
union formation, published by Praeger in 2015 ("The End of
American Labor Unions: The Right-to-Work Movement and the Erosion of
report was first published at The
Conversation and is reprinted here with permission
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