- “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]
Our estimates suggest that teacher collective bargaining worsens the future labor market outcomes of students: living in a state that has a duty-to-bargain law for all 12 grade-school years reduces earnings by $800 (or 2%) per year and decreases hours worked by 0.50 hours per week. The earnings estimate indicates that teacher collective bargaining reduces earnings by $199.6 billion in the US annually. We also find evidence of lower employment rates, which is driven by lower labor force participation, as well as reductions in the skill levels of the occupations into which workers sort. The effects are driven by men and nonwhites, who experience larger relative declines in long-run outcomes.
Jon Gabriel discusses the current wave of teacher strikes, Caleb Brown notes that “Kentucky Teachers Have Had Enough” — but of what? — while this Twitter thread discusses the Oklahoma walkout. More: Eric Boehm on Kentucky’s efforts to shore up underfunded teacher pensions.
In the pending Janus case, the Supreme Court may recognize a First Amendment right of government workers not to be obliged to pay mandatory union dues as a condition of employment, while not disturbing the situation for private sector employees, who have no such First Amendment right. Presto, an opening for union subterfuge involving pretend privatization of the government jobs:
The unions’ version is to create and insert between government and employees sham “private” units to handle human resource and payroll functions and, thereby, assume the role of “legal employer.”
Ironically, some of the first groups of unionized employees to be targeted for such a strategy are in sectors where public-employee status had itself been a subterfuge: independent home health care workers paid with state moneys who had only been declared public employees in the first place as a way to herd them into unions. With the new twist, these independent workers could thus have been reclassified twice: first from private to public so as to allow the fiction of a single employer and coverage by pro-union state policy, and then from public to private to avoid the constitutional protections that would ordinarily accompany work for a public employer. [Red Jahncke, New London Day and earlier The Hill.)
- Striking expose of why subway construction costs so much more in New York City than in other cities like Paris and Hong Kong [Brian M. Rosenthal, New York Times]
- “The Myth of Public-Sector Unions’ ‘Free Rider’ Problem” [Trevor Burrus and Reilly Stephens, Cato, on Janus v. American Federation of State, County, and Municipal Employees, Council 31, earlier here, here, and here]
- Ray of hope on Golden State finances: Gov. Jerry Brown says absurd “California Rule” on pensions must yield [Nick Gillespie] “The Legalities of Pension Reform: How Do You Get There From Here?” [Alexander Volokh, Reason Foundation]
- “Battling treacherous office chairs and aching backs, aging cops and firefighters miss years of work and collect twice the pay” [Jack Dolan, Gus Garcia-Roberts and Ryan Menezes, L.A. Times]
- Politicized pensions: NYC’s scheme to divest from oil companies is unlikely to accomplish goal but does put funds’ investment performance at risk [James Copland, New York Daily News]
Annual survey of more than 280 state-administered public pension plans finds trouble ahead [Thurston Powers, Elliot Young, Bob Williams & Erica York, ALEC]
- “The missile employee messed up because Hawaii rewards incompetence” [Gene Park, Washington Post]
- Spotted in Senate tax bill: what sounds like an excellent proposal to cut off worker-classification lawsuits [Shu-Yi Oei and Diane M. Ring (who take a very different view of the provision) via Caron/TaxProf]
- Federalist Society convention video on future of federal workplace agencies with Alex Acosta and Nicholas Geale of DoL, Victoria Lipnic of EEOC, Philip Miscimarra of NLRB;
- “‘Mistake’ in Pennsylvania homecare contract would have helped unions in fight over healthcare workers” [Sean Higgins, Washington Examiner; Cato podcast with David Osborne and Caleb O. Brown]
- Automatically worth reading, Claudia Goldin on gender pay gap [New York Times]
- Public sector unions rule in California politics, and pension-spiking is just one of the results [Steven Greenhut] “California Union Bill Looks to Ban Outsourcing Public Services” [same]
- New report from Dana Berliner, Clark Neily al., “Occupational Licensing Run Wild” [Federalist Society Regulatory Transparency Project]
- Sending a letter to your employees informing them of a pending EEOC investigation might itself violate discrimination laws [Jon Hyman] More: Jerome Woehrle;
- As its fiscal year 2017 closes, a “return to frantic filing” at the EEOC [Matthew J. Gagnon, Christopher J. DeGroff, and Gerald L. Maatman, Jr., Seyfarth Shaw]
- Once occupational licensure is in place, it’s hard to pry off established interests that grow up around it [Steve Bates, Society for Human Resource Management, and thanks for quotes]
- Nassau’s labor unions say it’s “impossible” to summarize their contracts with county, as financial control board would like [Robert Brodsky, Newsday]
- “Michigan’s pension reforms are kind of a big deal” [Eric Boehm, Reason] “State Police Pay 43 Officers Over $300k Each To Not Retire” [Evan Carter, Michigan Capitol Confidential]
- “Organized Labor Wants to Push Out Local Restaurants and Raise Prices at Portland International Airport” [Nigel Jaquiss, Willamette Week]