How the Supreme Court's 'Knox v. SEIU' Decision Could Dismantle Union Security Around the Country
The Supreme Court struck at the rights of workers with the blade of the First Amendment on June 21, when it made a decision that will restrict unions’ ability to spend on elections, and could open the way for passage and court approval of a national, union-weakening, so-called "right to work" law.
The curious case of Knox v. Service Employees International Union (SEIU) Local 1000—in which the high court decided to throw "judicial restraint" to the wind and go beyond the questions posed in the appeals court to rule against the union—portends nothing good for workers. Knox restricts how unions can get money for political uses from public sector workers in a unionized shop who refuse to join the union (Garrett Epps over at the American Prospect has a great description of the particulars in the case.)
Even as unions in the private sector have seen their memberships dwindle to around 6 percent of the workforce, public sector unions (in places where they are still recognized) have remained relatively strong because they have been allowed to collect some money—albeit less than the full union-dues amount—from workers who do not want to belong to the union. The public sector union contract has to cover all the workers in the agency, not just card-carrying members-- and all the workers benefit from the resultant pay raises, health benefits, pensions and other goodies. So non-members are expected to contribute something to the direct cost of negotiations. (Workers who don’t support the union shouldn’t get to enjoy the better pay and working conditions that their union colleagues fought for, but employers haven’t historically been willing to pay people less for NOT being union members. They much prefer to bribe, cajole and threaten workers to reject the union.).
Public sector unions have been major political players, too (see: Scott Walker’s targeting of Wisconsin’s public employee unions).This is partly because fundraising for politics has been relatively simple: with everyone’s full knowledge and ample notice given (called “Hudson notices”), a percentage of both members’ and non-members’ funds could go toward political work. Anyone could opt out of this political fund, and their money would be reimbursed.
The Knox decision brings this practice to a screeching halt.
Essentially, the court held two things: one, that SEIU violated those existing rules in 2005 when it forced state workers who aren't union members to pay, without the usual opt-out chance, for a one-time special political fund; and two, that even giving the money back and letting workers opt out of the political fund was still a violation of the workers' First Amendment rights. The five conservative justices, led by Justice Samuel Alito, and two concurring liberals, further held that, from now on, non-members have to specifically tell the union to take money out of their paychecks for political purposes; that is, they have to opt in.
In a statement released the day of the decision, Sacramento, CA-based SEIU Local 1000 spokesperson Jim Herron Zamora said, “Unfortunately this decision continues the attack on the right of public sector workers to act collectively to impact their workplace on important issues.” Placed alongside the Supreme Court’s Citizens United ruling that granted corporations unlimited election fundraising superpowers as part of "free speech," the Knox ruling makes plain whose First Amendment rights the conservative justices favor in electoral politics. The AFL-CIO Thursday released a statement to this effect: “We are disturbed but not surprised,” it said, “that the conservative majority places special burdens on public sector unions in their efforts to represent working people’s economic interests through the legislative process that the Court does not apply to corporations when they spend shareholder money on politics.”
(Imagine if, as John Nichols at the 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.
By using the First Amendment to call even the “agency shop” arrangement into question, the Supreme Court appears to be encouraging “right to work” advocates to push their agenda of forcing all workplaces to adopt “open shop” arrangements onto the national stage. (States that already operate under “right to work” have lower wages and of course, weaker unions.)
Having tasted blood in the private sector, anti-union front groups like National Right to Work are moving in for the kill by coming after public sector union members. It would seem from the Knox decision that the Supreme Court is open to new laws that would break apart public sector unions.
But SEIU, which represents 1.9 million public- and private-sector workers in the US, won’t be altering its ambitious election strategy one iota as a result of the Knox decision, according to a source at the national union headquarters. That strategy? “By Election Day, the SEIU field campaign intends to connect with voters by making 13 million phone calls, knocking on more than 3 million doors and holding more than 1 million conversations across the country, with the majority of the work focused in Colorado, Florida, New Hampshire, Nevada, Ohio, Pennsylvania, Virginia and Wisconsin,” the union said in a statement released June 19. In addition to these get-out-the-vote efforts, SEIU said it plans to purchase TV, radio and print ads—only now that the Knox decision is out, it will have to use only funds from its own members and from non-members who specifically opt-in to an elections fund.
Whatever the success of SEIU’s efforts, it remains to be seen whether workers will allow themselves to be cut out of politics altogether by Supreme Court Justices who think the First Amendment should apply only to corporations. Maybe, as in 1935, the time is ripe for workers to make their own answers: to insist on striking a new deal with the employers—public and private— who would rather see them knuckle under and gratefully continue punching the clock for the same old poverty wages.