The California Environmental Quality Act (CEQA) and other California laws are notorious for delaying and driving up the cost of building projects. Aside from their uses for neighbors pursuing Not In My Back Yard (NIMBY) goals, the environmental laws are also employed for leverage by labor unions who threaten to invoke them “to stop new construction unless they get a cut of the action. One developer is fighting back.” [Scott Shackford, earlier on CEQA]
- Great moments in public employee unionism, cont’d: D.C. Metro track inspector charged after derailment with falsifying records wins reinstatement and back pay in arbitration [Max Smith, WTOP, earlier here (similar after fatal smoke incident) and here] Could be permanent? “Bus drivers’ union threatens strike over driverless buses” [Jason Aubry, WCMH (Columbus, Ohio)]
- Letting guests skip housekeeping = grievance: “Union Threatens Strike over Marriott’s Green Initiative” [Darrell VanDeusen, Kollman & Saucier]
- Stephen Bainbridge series on what’s wrong with Sen. Elizabeth Warren’s proposals [earlier, etc.] continues with a post on labor co-determination and employee involvement in corporate governance;
- “Public Sector Unions Win Big at the California Supreme Court: California citizens must now meet and confer with union bosses before qualifying any compensation-related initiatives for the ballot.” [Steven Greenhut, Reason]
- My Frederick News Post letter to the editor opposing Question D (mandatory binding arbitration and collective bargaining for career firefighters). More on mandatory binding arbitration in the public sector: Ivan Osorio et al on California, for Cato (see pp. 12 et seq.); Steve Eide, Public Sector Inc., 2013.
- “Waikiki, Hawaii hotel workers decline to join union; the union demands they pay full dues anyway, starts process to garnish their wages. Does the union’s conduct amount to an unfair labor practice? NLRB: No, the union made an honest mistake. D.C. Circuit: That ‘makes no sense.’ The union never apologized or said it made a mistake. Its message to the workers was, ‘We can do this the easy way, or we can do this the hard way.'” [John Kenneth Ross, IJ “Short Circuit”]
- Are public subsidies to low-earning employees a subsidy to their employers, as Sen. Bernie Sanders claims? [Cato Daily Podcast with Ryan Bourne and Caleb Brown; Bourne in USA Today and National Review]
- “To Speak or Not to Speak, That Is Your Right: Janus v. AFSCME” [David F. Forte, Cato Supreme Court Review] From two critics of decision: “What Janus Got Right — and Wrong” [Will Baude and Eugene Volokh] “More on Suits against Unions for Janus Violations” [Will Baude] Earlier here, here, etc.
- On sexual harassment, social mores have changed; biology hasn’t [Suzanne Lucas, Law and Liberty]
- California’s criminal code is honeycombed with special exemptions for conduct carried on as part of labor activity [Edmund Pine, California Policy Center last year] Or at least make sure federal law does not provide it an artificial shield: “Congress Should Ban Union Violence” [Emily Top, Economics21; David Kendrick, Cato 1998]
- “Verizon employee leaves work early, prompting months long investigation, during which employees offered conflicting accounts of whether the employee’s departure was authorized. NLRB: All of which was a pretext to fire a union-supporting employee. D.C. Circuit: Nope. Companies can fire employees for being dishonest, and that’s all that happened here.” [John Kenneth Ross, IJ “Short Circuit” on Cellco Partnership v. NLRB]
- “Workers affect worker safety too” [David Henderson]
- Judge greenlights lawsuit claiming right to literacy under California constitution [Stephen Sawchuk, Education Week] Whatever its surface appeal, legal right to literacy (or access to same) not in fact a good idea [Scott Greenfield on Michigan suit]
- “Teachers’ unions plan to become ‘more political, not less political'” [Frederick Hess and Grant Addison] “The Long-Run Effects of Teacher Strikes: Evidence from Argentina” [David Jaume and Alexander Willén, Cato Research Brief] Worsening human capital outcomes: “The Long-run Effects of Teacher Collective Bargaining” [Michael Lovenheim and Alexander Willén, NBER via Tyler Cowen]
- D.C.’s credentialism will hurt families: “Childcare Regulation and Quality” [Ryan Bourne, Cato, earlier here, here, here, and here]
- “The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline: Wrong for Students and Teachers, Wrong on the Law” [Gail Heriot, parts one, two, three]
- “Mom Brings Coughing 10-Month-Old to the Hospital. Days Later, Cops Take the Baby.” [Lenore Skenazy, Minnesota]
- “The New Head of the Office for Civil Rights Charts a Very Different Course” [George Leef, Martin Center profile of Kenneth Marcus]
“The U.S. Labor Department on Tuesday officially rescinded the Obama administration’s ‘persuader rule’ that would have required lawyers and consultants to report on advice given to employers about persuading employees on union issues.” Among its numerous other problems, the rule drew fire from the American Bar Association and other groups as an infringement on lawyer-client confidentiality. [ABA Journal, earlier]
- “Why It Was Proper (and Necessary) to Overturn Old Precedent” [Ilya Shapiro and Aaron Barnes, Cato, earlier on Janus v. AFSCME case]
- Mackinac Center has launched national exit-encouraging campaign [My Pay My Say] Class action suits in several states against government unions seek refund of fees paid [Bill McMorris, Free Beacon]
- Proposal to have public employers simply pay unions directly could eliminate workers’ choice in the matter [Benjamin Sachs and Sharon Block, Vox (favoring idea); Eugene Volokh]
- “California’s Government Unions Take Steps to Obliterate Janus Impact” [Edward Ring, California Policy Center, earlier on California aftermaths]
- “How NY will thwart Janus rights” [Ken Girardin, Empire Center; Eric Boehm; earlier on evasion] When right to work came in, “Michigan unions didn’t simply refrain from identifying the exits. They actively worked to make leaving difficult and onerous.” [Joseph G. Lehman and John R. LaPlante, USA Today]
- And now for something completely different: “After Janus, Conservatives and Teachers’ Unions Should Collaborate” [Max Eden; Erica L. Green, New York Times on how American Federation of Teachers is coping with decision]
In yesterday’s Janus v. AFSCME Council 31, the Supreme Court ruled in an opinion by Justice Samuel Alito that the practice of requiring public employees to pay “agency fees” to unions to engage in collective bargaining, including the pursuit of demands concerning workplace policy that may be antithetical to the worker’s own views, is a violation of the First Amendment’s restrictions on compelled speech. The ruling was 5-4 along conservative-liberal lines.
In her dissent on behalf of the four liberals, Justice Elena Kagan outlined the so-called free-rider problem that has been said to justify requiring public employees to pay union fees [citation to 1991 paper omitted]:
Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)—so they too quit the union. And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative—or, in the worst case, to perform them at all. The result is to frustrate the interests of every government entity that thinks a strong exclusive-representation scheme will promote stable labor relations.
The free-rider argument is a weak one on its own terms, even if you leave aside Justice Alito’s observation for the majority that free-rider economic arguments are ordinarily not expected to override First Amendment concerns. To begin with, unions not only still exist in the U.S. states (a majority) that have enacted “right to work” laws curbing agency fees, but sometimes wield much political clout. Janus does not spell a death knell for public unions that provide their members with value.
Moreover, as Cato scholars Trevor Burrus and Reilly Stephens have pointed out, European unions have developed along somewhat different institutional lines: they rely less on models of exclusive bargaining representation and more on collective social representation and solidarity (often linked to direct involvement in provision of fringe benefits and other valued services). Far from being weakened by their departure from the “American” model of exclusive collective representation, they seem to be in many ways more formidable than are American unions.
Expect state and local governments that are closely allied with the political interests of unions to scramble now to enact measures meant to evade Janus. Here is a description of what just happened in California, from Joel Fox at the political site Fox and Hounds:
SB 866 would cement union control over access to individual employee decisions on whether to continue paying union dues, should mandatory agency fees be deemed unconstitutional. …Key elements of the bill include:
- Requiring for any school teacher, state firefighter, college professor, prison guard, environmental regulator, or any of the hundreds of other classes of state and school employees who may wish to reduce or eliminate their mandatory union dues, that they make this request exclusively to the union rather than to their employer.
- Unions would not be required to provide the actual authorizations for dues deduction to the school board or State Controller, but instead would merely certify to the public agency’s payroll department as to who is or is not paying union dues. Public employers must rely on the unions’ representations regarding dues deductions.
- Unions would indemnify public employers over claims made by individual employees for deductions made in reliance on union representations.
- Employees would be prohibited from contacting their employer directly regarding union dues deductions.
- A public employer may not send mail or email to its employees, or provide an oral presentation, about their right to join or refrain from joining a union, unless the employer facilitates delivery of similar messages from the union.
- Government employee unions currently have access to orientation sessions for new employees. This bill would limit disclosure of the date, time and place of these sessions to the employees and unions only. Members of the public and taxpayers would be kept in the dark about meetings of public officials.
If signed by Governor Brown, the measure would take effect immediately.
The California bill was rushed through both houses in quickstep fashion as a budget trailer bill and was signed by Gov. Brown yesterday. Note, however, that section VII of Alito’s opinion, by requiring affirmative consent for fee withholding rather than allowing assumed waiver, could foil some of the scheme above.
Note also our March post on how unions may be planning to reclassify some workers from public to private in order to get around Janus, including workers who had earlier been reclassified from private to public to benefit the same unions.
[cross-posted and expanded from Cato at Liberty] More: earlier, Roger Pilon, Ilya Shapiro (“Today’s decision at long last remedies this violation of all workers’ rights to the freedom of speech and association”), Cato podcast with Caleb Brown and Trevor Burrus.
- “For years, a Texas electric utility company and its union feuded over the installation of automated smart meters; the company wanted them; the union didn’t, fearing they would put meter-readers out of work. A repairman for the company testifies to state legislators that the smart meters are combustion prone and damaging homes. Company: Which isn’t true. You’re fired. NLRB: Can’t fire him. His testimony was protected union activity. D.C Circuit: Maybe not. We’re very deferential to the Board, but even so, the NLRB’s reasoning here is ‘too opaque.'” [John Kenneth Ross, Short Circuit, on Oncor v. NLRB]
- May Day replay: What happened at the Haymarket Affair? [John J. Miller] A Wikipedia footnote [Timothy Messer-Kruse, Chronicle of Higher Education]
- Decline in number of U.S. manufacturing jobs is not owing to decline in unionization [Colin Grabow, Cato]
- More for the “I thought contractual non-union arbitration was just a racket to benefit employers” files [Eric B. Meyer, Employer Handbook (prospective “tsunami” of arbitration claims against chain restaurant); Daniel Schwartz (exotic dancers win big in private arbitration)]
- “Regulating the Modern Workforce,” Federalist Society Regulatory Transparency Project symposium video with James C. Cooper, Clark Neily, Ryan Nunn, Gabriel Scheffler, John Yun;
- “Consumers do not have the option of abandoning unionized public services if they become too expensive and inefficient, as they can do with unionized services in the private sector.” [Chris Edwards, Cato on Janus v. AFSCME]
- “Three Bad Arguments for Government Paid Leave” [Vanessa Brown Calder, Cato]
- So much wrong with Bernie Sanders scheme of a guaranteed government job for everyone [Ryan Bourne, Cato] “This old socialist standby deserves to stay exactly where we left it — on the ash heap of history.” [Megan McArdle]
- NYC legislates “dues checkoff” payable to activist groups [Ruth McCambridge, Nonprofit Quarterly]
- “Ralph Lauren interns get next to nothing after winning lawsuit” [Julia Marsh, New York Post]
- Uh-oh: Ford Foundation funding Harvard Law School project to redesign U.S. labor law from ground up [Benjamin Sachs, On Labor]
- The federal law that forbids employers from ceasing to participate in union (multiemployer) pension plans unless they pay massive “withdrawal liability” including obligations of other employers is unjust and destructive. Now it’s playing havoc with the makers of Peeps confections [Damien Paletta, Washington Post/Lehigh Valley Live, related earlier]
- “I’m lovin’ it: McDonald’s settles joint employer case with NLRB” [Jon Hyman] Will NLRB junk its joint employer doctrine once and for all? [Scott Shackford, Reason, in December] String of welcome NLRB rulings on other topics in late 2017 [Sharon Block, On Labor, who should not be held responsible for my evaluation of the decisions as welcome] More: Connor Wolf, Inside Sources;
- Union opt-out window at U.S. Dept. of Education will be open more than one 48-hour period per year [Frederick Hess and Grant Addison, AEI] Spot the logical flaw: claim that Janus and Masterpiece Cakeshop cases could combine to create new First Amendment right for public school teachers to strike [Andrew Strom, On Labor]
- Eighth Circuit: federal labor law doesn’t protect workers against firing over IWW flyer-posting campaign falsely claiming restaurant’s food is unsafe [Daniel Pasternak, Employment Law Worldview; earlier here and here on Jimmy John’s/MikLin dispute]
- Mark Pulliam remembers a giant of labor law, Prof. Sylvester Petro [Misrule of Law]
- In Britain, Royal Mail cooperates with some of its union locals after they vote not to deliver Mr. Murdoch’s Sun paper to homes [Adam Withnall, Independent]
- One libertarian economist’s view of right to work laws [David R. Henderson] Municipal home rule ventures into labor regulation can work both ways: “Local Right-to-Work Case Has National Implications” [Connor Wolf, Inside Sources on Lincolnshire, Ill. RTW ordinance before Seventh Circuit]