08.01.2016

After the Friedrichs Scare

  • Joseph A. McCartin

US public sector unions have gotten a reprieve. Will they use it to rebuild, or squander the opportunity?

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The sudden death of Supreme Court justice Antonin Scalia earlier this year has seemingly granted a reprieve to the US labor movement. Just one month before his death, during oral arguments for Friedrichs v. California Teachers’ Association, Scalia made clear he was ready to join a majority in overturning a 1977 precedent that allows unions in more than twenty states to collect so-called fair-share fees from the public-sector workers they represent, whether those workers join the union or not.

Had Scalia lived, the court undoubtedly would have allowed government workers in every state to become free riders, a move that might have dealt a devastating blow to unions’ finances, morale, and political clout.

To envision the damage a negative decision in the Friedrichs case might have caused, consider what has happened in Wisconsin since 2011. When Republican governor Scott Walker signed Act 10 into law that year, he effectively stripped most of Wisconsin’s government employees of collective bargaining rights and deprived unions of the ability to collect fair-share fees or use a dues check-off system.

Within two years the number of union members in the state fell by fifty thousand, and the share of government workers who claimed union membership dropped from 50 percent to 37 percent. By 2015, overall union density in Wisconsin had fallen to 8.3 percent — roughly half of what it had been ten years earlier.

The Friedrichs case could have precipitated a similarly damaging result nationwide. The states that offer broad protection to negotiate contracts with fair-share provisions boast more than two-thirds of the nation’s 14.6 million union members. By imposing “right-to-work” on those states, Friedrichs might have cost the labor movement nearly 10 percent of its total membership within months.

Fortunately for the labor movement, none of that came to pass. Lacking Scalia’s vote, the court announced in March that it was deadlocked on the case; the lower court’s ruling supporting the unions’ right to collect fair-share fees would stand.

Some in labor’s ranks — believing that President Obama or a potential Democratic successor will fill Scalia’s empty seat with a sufficiently pro-labor justice — have concluded that the existential threat posed by the Friedrichs case has passed.

But labor has little cause to breathe a sigh of relief. As a review of recent history makes clear, the anti-union momentum that led to Friedrichs has not been dampened. Until unions directly challenge the forces that set the stage for Friedrichs in the first place, the assault on public-sector unionism will continue.

A Long History

Friedrichs did not come out of the blue. The line of attack that union opponents took in the case dates to the formation in 1973 of the first organization dedicated solely to fighting the growing influence of government workers’ unions, the Public Service Research Council (PSRC).

The group’s ideological godfather, libertarian law professor Sylvester Petro, was a prominent anti-unionist dedicated to combating what he saw as the dangerous character of public-sector union militancy.

Like most anti-unionists, Petro had been surprised by the sudden rise of public-sector unions in the 1960s. Although he had opposed the first statewide public-sector collective-bargaining law in Wisconsin in 1959 and condemned John F. Kennedy’s 1962 executive order allowing a limited form of collective bargaining for federal workers, it was not until government workers began acting militantly in the mid to late 1960s that Petro began to see the movement as a real threat.

Prior to this, Petro had focused his attention on the private sector, building a libertarian critique of the National Labor Relations Act by arguing that it encouraged strikes and labor violence. He had elaborated this argument in testimony before Congress and in books that gained a following in anti-union circles, such as The Kohler Strike: Union Violence and Administrative Law (1961).

In the early 1970s, Petro reworked his libertarian argument to address the threat he now perceived in public-sector unionism, focusing on the growing militancy of public-sector workers.

The twenty states that had legalized collective bargaining for government workers by the early 1970s, Petro argued, were encouraging an explosive wave of strikes. This militancy in turn was undermining the very basis of democratic self-government, he contended, for government unions were striking to win demands that infringed on government sovereignty.

Unless this militancy was turned back, citizens would soon have “to take to the hills and the fields and the caves once more, as our ancestors have frequently had to do when integral — sovereign — government has broken down.”

It was to advance this argument that Petro helped create the PSRC in 1973. It promptly unfurled a decade-long campaign against public-sector collective-bargaining laws, arguing that they promoted destructive strikes.

That argument resonated among anti-unionists because it pointed to an undeniable phenomenon. Between 1963 and 1973, the number of public-sector strikes increased tenfold, and militancy was still growing in the mid 1970s.

Public-sector militancy in this period sprang from several causes. Undoubtedly, inflation was one trigger; government workers generally lacked automatic cost-of-living adjustments, so they went on strike to protect their purchasing power.

But militancy also grew because it played a crucial role in public-sector collective bargaining by disciplining both sides of the bargaining table. Neither unions nor employers had an interest in seeing prolonged strikes. Long walkouts inflicted lost wages and mounting fines on strikers (since most public-sector strikes were illegal) and incurred rising anger directed at public officials from those who relied on interrupted services.

However, strikes also inoculated both sides against criticism. Union leaders were better able to argue they had gotten the best deal possible for their members if a fight had preceded the settlement; politicians were better positioned to deflect claims they had given up too much if they had shown they were unafraid to “take a strike.”

Both the public and the courts seemed to grasp these nuances in the mid 1970s. A 1974 Harris poll found that the public supported the right to strike for all government employees — even firefighters and police officers — and eight states legalized walkouts for at least some public-sector workers by 1977.

Even Warren Burger’s court understood the complexities of the issue, as it showed in its precedent-setting 1977 decision in the case of Abood v. Detroit Board of Education — the very decision that the Roberts court considered overturning in Friedrichs.

In the Abood case, Sylvester Petro argued for the plaintiffs, a group of disgruntled Detroit teachers who objected to a Michigan law that compelled them to pay union dues in return for the collective bargaining the union did on their behalf.

Petro’s argument reiterated his well-rehearsed ideas. He contended that any effort by a union to exact mandatory payments from the teachers it represented violated their free-speech rights, because it forced them to pay for political speech through the collective-bargaining process.

The Supreme Court disagreed. In a unanimous decision, the justices drew a distinction between collective bargaining and politics: While unions couldn’t use mandatory fees to engage in electoral activity, workers covered by labor agreements could be required to share the costs of bargaining, contract administration, and grievance processing.

The court’s rationale in the Abood decision was largely a response to the labor militancy of the 1970s. In the majority opinion, Associate Justice Potter Stewart admitted that “an employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative,” and that mandatory payments could have “an impact upon their First Amendment interests.”

This impact was justified, he said, because of the “desirability of labor peace.” Union security, Stewart implied, could deliver that peace.

However, once government workers’ militancy began to dwindle in the 1980s and ensuring “labor peace” was no longer a concern, public-sector unions found themselves vulnerable to attack not for their militancy but for their political activity. It was this attack that led them to the brink in Friedrichs.

New Salvos

The story about declining union power over the last several decades is usually told in terms of plummeting union density. But workers’ willingness to confront their employers with a strike tells us even more about the balance of power in labor relations.

By that metric, the scales have tilted drastically since the Abood era. Between 1960 and 1980, the number of major work stoppages held steady at an average of 283 per year. That number plunged 70 percent in the 1980s and hasn’t stopped plummeting since: In the 1990s, the annual average was thirty-five work stoppages, in the first decade of this century it was twenty, and since 2010 it has been fifteen.

There were many causes for declining militancy, including the effects of globalization and plant closings, the introduction of new technologies, and employers’ increased interest in busting unions.

Ronald Reagan’s presidency played an important role in promoting that interest in union-busting. Not only did Reagan appoint anti-unionists to the National Labor Relations Board (NLRB), he crushed the 1981 strike led by the Professional Air Traffic Controllers Organization (PATCO) by permanently replacing striking air traffic controllers.

His spare-no-expense, show-no-mercy suppression of that federal-sector walkout encouraged private-sector employers to break strikes even as it chilled public-sector labor relations.

Panicked by the thought of, as one leader put it, “thousands of little Ronald Reagans across the country in every town saying, ‘Fire them’ whenever public employees confronted them in a labor dispute,” public-sector unions also called fewer strikes. The number of worker days lost due to government strikes dropped by 50 percent between 1980 and 1982 and never again returned to pre-PATCO levels.

Public-sector unions had good reason to adopt a less assertive style in the Reagan years. Not only did walkouts invite attacks by Reaganite politicians, government workers found it harder to gain public support for their demands once private-sector workers began seeing their own pay and benefits stagnate or shrink.

Beginning in the 1980s, public-sector unions increasingly relied on political action to advance their members’ interests, creating a pattern that persists to the present day. Where possible, unions looked for Republican allies and showed a degree of political flexibility that would have made Samuel Gompers proud.

In 2004, for example, the Service Employees International Union (SEIU) boasted that it was the largest donor to both the Republican and Democratic governors’ associations. Over time, however, public-sector unions came to rely increasingly on Democrats, for the post-Reagan Republican party offered little sympathy for unions.

The labor-Democratic alliance by no means created a harmonious fusion of interests. When it suited their perceived political needs, Democrats regularly disappointed their union supporters.

Yet without strikes spotlighting conflicts in the public sphere, disputes between these allies usually played out in electoral campaigns and behind-the-scenes legislative and budgetary negotiations. The lack of open conflict between unions and Democrats fed a perception that they were simply engaged in mutual backscratching.

By the time Barack Obama entered the White House in 2009, Republicans widely viewed public-sector collective bargaining as nothing more than a scheme whereby Democrats ensured funding for a loyal Democratic constituency group. Sylvester Petro’s fear that union militancy was undermining government sovereignty had by then been replaced by a new specter in the minds of anti-unionists: public-sector labor’s dangerous political influence.

Anti-union academic Daniel DiSalvo is among those who have tried to define this new threat. In his 2015 book Government Against Itself: Public Union Power and Its Consequences, DiSalvo argues that an “iron triangle” has emerged in government in which unions, politicians, and government agency managers use collective bargaining to collude to protect each other’s interests at the expense of the public interest.

Public unions, DiSalvo argues, are “fundamentally political entities” that merely exploit collective bargaining to advance their political interests. Because this is so, he concludes, laws that allow unions to compel workers to support collective bargaining through fair-share fees amount to infringements on free political expression.

Arguments by DiSalvo and his allies provided the intellectual ammunition for the Friedrichs challenge. In his 2014 opinion in Harris v. Quinn, Justice Samuel Alito cited DiSalvo’s work to signal his intention to reverse the Abood precedent. No doubt DiSalvo would have been cited favorably once again had Antonin Scalia lived long enough to join Alito in the Friedrichs decision.

Seizing the Moment

While unions appear to have dodged the Friedrichs bullet, it would be unwise to mistake this providential deliverance for a long-term reprieve. Public-sector unions are now operating in the most hostile legal and political environment they’ve faced since they first won bargaining rights.

Even if the Supreme Court lets the Abood precedent stand for another generation, state-level efforts to undermine union security provisions will continue, fueled by the arguments of DiSalvo and other critics of union political influence.

The American Legislative Exchange Council, better known as ALEC, is currently supporting “paycheck protection” bills that would terminate fair-share provisions in Pennsylvania, Missouri, and Louisiana. Similar efforts are sure to follow in other states.

To be sure, Friedrichs served as a wake-up call for many in the labor movement. Unions scrambled into action, convinced that a negative decision was likely. SEIU, the American Federation of State, County and Municipal Employees (AFSCME), the American Federation of Teachers (AFT), and the National Education Association (NEA) all launched vigorous internal organizing campaigns to convert fair-share fee-payers into full union members in anticipation of a “post-Friedrichs world.”

The unions believed they could avert big membership losses if they reached out to members and fee-payers alike and began to cultivate a higher level of engagement and loyalty among those the unions represent.

This approach makes sense. If workers feel invested in the unions that bargain on their behalf, they are more likely to continue to support them whether the law compels it or not. Moreover, the progress unions have made in converting fee-payers into members actually leaves them in a stronger position now than they were a year ago.

But if better internal organizing is all unions take away from their recent brush with disaster, they will remain vulnerable going forward. By merely adopting a more effective form of “fortress unionism,” public-sector unions leave unchallenged the economic and political forces that have increasingly isolated them over the past thirty-five years — forces that will continue to undercut them and the rest of organized labor unless directly confronted.

Public-sector unions must use this moment to advance a broader vision. They are the most organized and politically potent defenders of the idea that a democratic society requires a vibrant public sector that operates outside of the profit-seeking imperatives of the market.

If they do not begin to take risks on behalf of that idea, they will imperil their own future and organized labor’s — no matter how adept they become at internal organizing and no matter who wins the presidency in 2016.

Part of that risk-taking should involve reviving direct-action militancy. Unions’ gradual replacement of militancy with political action and lobbying since the 1980s has trapped them in a cul-de-sac where they are dependent on unreliable Democrats, under attack from increasingly anti-union Republicans, and vulnerable to the charge that they are simply political rent-seekers. Unions should rely less on electoral politics and remember that political leverage can be gained in the workplace — and in the streets — as well as at the ballot box.

However, reviving public-sector union combativeness cannot mean returning to past models. Times have changed. In the early 1970s, public-sector unions could engage in civil disobedience and violate strike bans with the confidence that they held the moral high ground and enjoyed broad public support.

In those days, they were merely seeking the same things that unionized private-sector workers had won. Going forward, militancy will only succeed to the extent that it clearly advances the common good — not just the interests of public-sector workers.

Fortunately, some unions are beginning to grasp this truth. The most prominent recent example is the Chicago Teachers Union (CTU). Led by a newly elected reform slate, the CTU launched a strike in 2012 against Mayor Rahm Emanuel in which the union’s partnership with community allies proved pivotal.

In that strike, the CTU drew on energy crystallized by the Occupy movement of the previous year, targeted the millionaires who dominated the Chicago school board, and put unconventional new demands on the bargaining table.

They insisted that Chicago claw back public subsidies from the Hyatt hotel chain and the Chicago Board of Options exchange, and that the Chicago Public Schools sue Wall Street firms to recover tens of millions of dollars lost in toxic interest-rate-swap deals.

Flouting legal statutes that permitted teachers to strike only over wage and benefit issues, the CTU insisted on a wide range of demands to improve public schools, including smaller class sizes, social services, and more. While the CTU and its allies did not win everything they wanted, the bonds the union forged with parents and the broader community allowed it to outflank Emanuel in the strike.

The Chicago struggle helped illuminate how neoliberal policies have eroded the health of public institutions; it also helped develop a blueprint to confront the forces of financialization that are driving growing inequality.

Other unions have since adopted versions of the CTU’s approach. In May 2014, unions and allied community organizations from seven states convened in Washington, DC, to construct a collaborative called Bargaining for the Common Good that seeks to spread this new bargaining model. They exchanged ideas, learned from those who had already spearheaded similar campaigns, and planned ways to apply the model to their next contract negotiations.

Locals from AFSCME, AFT, NEA, SEIU, and the Communications Workers of America have all been involved in this effort. In 2015, Fix LA, a coalition of Los Angeles labor unions and community organizations, led a successful bargaining campaign inspired by the Bargaining for the Common Good model.

There, city workers and community allies held demonstrations to publicize the fact that Los Angeles was paying more in fees to Wall Street firms than it was spending to maintain the city’s streets; they leveraged the bargaining process to seek accountability in the city’s finances and restore public services to pre-recession levels. And they won, securing the hiring of five thousand municipal workers and spawning new efforts to reconfigure the city’s dealings with the financial sector.

It is too soon to know how far Bargaining for the Common Good might spread, but its proponents undoubtedly have the right idea. Since its earliest days, the success of the US union movement has depended on its capacity to engage in effective collective actions and its ability to elicit broad support for its struggles.

The passing of the Friedrichs threat offers labor an opportunity to rebuild both its capacity for action and its credibility as a defender of the common good.

It is now up to the unions to decide whether to content themselves with having defended the walls of their “fortress” against the most recent attack or to seize the opportunity this moment presents.

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