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How the Supreme Court's 'Knox v. SEIU' Decision Could Dismantle Union Security Around the Country

In Knox v. Service Employees International Union, the Supreme Court suggests that the First Amendment is for corporations, not working people and unions.

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(Imagine if, as John Nichols at t he Nation noted, “the Court had on Thursday ordered corporations, corporate groupings and corporate political action committees to get pre-approval from all shareholders before spending money on political or lobbying initiatives.” Of course they wouldn't—but unions are now expected to.)

Even more ominously for workers, though, Alito complained that, in his view, the entire system of “agency shop”— in which all workers at a government agency must pay something even if they don’t choose to join the union— approaches violating workers’ First Amendment rights. “The justification for permitting a union to collect fees from nonmembers—to prevent them from free-riding on the union’s efforts—is an anomaly,” Alito wrote. He added that requiring nonmembers to opt out of a pre-set payment “represents a remarkable boon for unions, creating a risk that the fees nonmembers pay will be used to further political and ideological ends with which they do not agree.”

Unions representing public workers have long argued that when workers at an agency don’t have to join or pay anything, the union’s bargaining power sustains significant damage. This weakening of unions can be seen in states like South Carolina and Alabama, where big, anti-union businesses have managed to lobby successfully for divide-and-conquer–so-called “right to work”—laws that force unions to allow workers in a given workplace to opt out of joining or paying representation costs. The resulting damage to private-sector unions has been well documented: less than 6 percent of the private-sector workforce is now unionized, down from about 33 percent in the late 1940s, when the first so-called “right to work” laws were passed in over a dozen states in the South and West.

It all started with workers using their voting and organizing power at the height of the Great Depression. Under the Wagner Act of 1935, when you got a job in a union shop anywhere, you joined the union. This “union shop” arrangement still prevails in many places. Similarly, when workers in a shop organized into a union, everyone had to join so that the union could act as the collective bargaining agent for all the workers in that workplace. Employers were bound by law to respect the union’s role as negotiator on the workers’ behalf. Workers enjoyed about twelve years of heavy union organizing, exercising their right to strike, and having a powerful voice on the job through collective bargaining.

Employers got scared; then they got organized. They convinced Congress to pass the Taft-Hartley Act of 1947, which, in addition to limiting the right to strike, permitted states to pass so-called “right to work” laws, now present in 23 states. These laws allow workers in a unionized place to decide not to join the union or pay anything toward the cost of their representation. This arrangement is known as the “open shop.”

Under these laws, though, the union must still represent even the non-members, and the non-members still benefit from everything the union has managed to win. This drop in the portion of workers who pay something weakens the union’s bargaining position and depletes it of needed funds for things like setting up strike funds, working elections, negotiating new contracts, and providing assistance to workers in trouble. And allowing non-members to get the union's services for free makes it harder to convince anyone to sign up to voluntarily pay; why buy the cow, as the cliché goes, when you get the milk for free?

The “agency shop” arrangement, like that used in the union featured in Knox, has served as a kind of compromise between union shop and “open shop” arrangements, because it allows the union to charge non-members something to cover the costs of negotiating their contract and handling grievances. Bolstered by President Reagan’s 1981 breaking of the air traffic controllers’ strike, the business community has used these laws to further erode workers’ ability to resist employers’ abuses.

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