David Coates

Defending Trade Unions while the Justices are Away.

The nine justices of the Supreme Court are now in recess, leaving the rest of us the summer in which to reflect upon and digest their latest set of rulings – particularly the two handed down on the last day before they took their break. Quite properly, given its reactionary nature, their 5:4 ruling on Burwell v Hobby Lobby has attracted most of the ire of progressive commentators; but that judgment was not the only one handed down on that last day. The nine justices also ruled, in Harris v Quinn, on an Illinois law requiring public sector employees to pay union dues even if they have no wish to become union members. Because it is likely that both judgments will have long-term adverse consequences for progressive causes, a moment of reflection on that second judgment is well in order.

The Harris v Quinn case was focused on government home-care workers in Illinois. The majority ruling struck down a law authorizing the state to agree with the relevant trade union (the SEIU) the dues that those workers should pay as a fair share of the cost of the union services provided. The majority struck that law down on the grounds that it “violated the government employees’ First Amendment rights to be free from providing financial support to collective bargaining.” [1] And they struck it down even though under Illinois law unions “have a legally imposed duty of fair representation: they are required by law to act in the interest of everyone they represent, not just those who voted for the union.”[2]

The judgment was presented by Samuel Alito – writing for the majority – as a narrow one, applying only to what he termed people who are “not fully-fledged public employees:”[3] but in truth it was not a narrow ruling.It had, and will continue to have, far wider implications and significance than that: for the following reasons at least.

The ruling’s place in the wider attack on trade union power

The Alito claim for narrowness is disingenuous in part because of where the ruling stands in relation to the general conservative attempt now underway to remove trade unions entirely from the US industrial and political landscape. This attempt is currently both nation-wide and nationally coordinated,[4] focused primarily on where trade unionism remains vestigially strong (among public employees): with one set of state-level Republican legislators after another now systematically introducing legislation “aimed at lowering labor standards, weakening unions and eroding workplace protections for both union and non-union workers.”[5] To take just 2011-12 as an example: that year – the first after the Republican 2010 mid-term sweep of state legislatures and the House of Representatives – 15 states suddenly passed laws restricting public sector collective bargaining, and 19 introduced “right to work” bills, the cumulative effect of which was “to undercut the ability of low and middle wage workers, both union and non-union, to earn a decent wage.”[6] (This at a time when, as the EPI calculated, “wages in right-to-work states [were] 3.2% lower than those in non RTW states, after controlling for a full complement of individual demographic and socioeconomic variables as well as state macroeconomic indicators.”[7]) It is not that the Supreme Court, in adjudicating Harris v Quinn, was merely marginally restricting trade union rights in a period of ever expanding trade union strength. It was far more a matter of the Supreme Court lining itself up alongside powerful interests that have already brought American trade unionism to its weakest condition for a generation, chipping away still further at the modest remains of the social architecture of the 1930s New Deal. The particular judgment in Harris v Quinn did not fully reverse earlier Supreme Court decisions upholding the rights of public sector unions – of teachers, firefighters and law enforcement officers – to insist on fees from everyone they represent: but it sent a very strong signal that any future challenge to that insistence will be well received by the conservative majority on John Roberts’ Supreme Court.

The ruling’s place in a set of recent Supreme Court judgments cumulatively reducing the rights of individual workers against their corporate employers.

This judgment does not stand alone. It followed others. It followed the ruling in Citizen’s United, for example, that gave free speech rights to corporations as well as to individuals, so leaving the former able to effectively drown out the latter by the sheer size of the resources available to corporate America. It followed Samuel Alito’s 2012 emphasis on the First Amendment rights of non-union workers in his ruling in Knox v SEIU.[8] And it was handed down alongside the ruling in Burwell v Hobby Lobby where “the court ruled that corporations have religious rights that trump the rights of their employees and allow[ed] the corporation to pick which laws it would like to follow and which it would like to ignore.” It is true that the majority of the Supreme Court presented themselves in the Harris v Quinn ruling as siding with individual workers against the unions that negotiate their collective agreements, but as Paul Waldman rightly observed at the time, it would appear that “the court’s conservatives become concerned about workers and their rights only when some subset of workers is seeking to undermine unions, which exist to equalize the power imbalance between employers and employees.”[9]While the ostensible purpose of the court was one of extending individual rights and defending the freedom of work, the reality behind the judgments was and will remain just the reverse.[10] As Michael Kinsley recently put it, “‘Right to work’ sounds like a law guaranteeing you a job, or at least protecting your job once you’ve got it…in fact, it’s almost the opposite: the main effect of right-to-work laws is to outlaw regulations of employment and to allow your boss to fire you without cause.”[11]

Standard misunderstanding of the special nature of labor markets.

In launching their “individual rights” defense of Harris, the conservative majority on the Supreme Court reinforced the usual image of unions as unwanted and unneeded monopolies, as private institutions distorting labor markets in which individual workers would be better off by simply acting alone. But labor markets are not like other markets – markets for commodities or markets for money – in which demand and supply regularly balance out unless monopoly forces distort their interaction. It is simply not the case that labor markets automatically settle at socially and economically optimum levels of employment and efficiency unless disturbed by trade union intervention, or that what we face without trade unionism is a level playing field between employer and worker which trade unionism then distorts. We do not. Unregulated labor markets are stacked heavily against labor.There is a basic asymmetry of power between the individual worker and his or her employer that trade unionism attempts to address. There is a power gradient running against labor unless unions act to pull it back. That redressing has never been more than partial, even at its greatest (to date) in the labor codes of the western European welfare states. If American conservatives now want to widen still further the distance between U.S. labor rights and European ones, as they appear to do, what they are actually arguing for is an intensification of the power gradient against labor – one that will leave individual workers less free than before to control the terms and conditions of their employment.

The beneficial consequences of strong trade unionism.

In the context of such power inequality, trade unions do not so much distort the labor market as help level the playing field within in. For workers without union protection face employers for whom their individual employment is at best only a marginal concern, even though for the individual worker it is the major one; and workers without union protection face work processes in which the employer’s interest is invariably to intensify that work process whilst minimizing the associated worker compensation. In unionized industries, workers staying out of the union free-ride on those who join – taking the benefits of collective bargaining without being willing to help fund the trade union bargaining for them. And in non-unionized industries (now virtually the entirety of U.S. manufacturing industry and the service sector) employers who treat their employees as just another factor of production – one that is disposable when no longer needed – invariably under-utilize the full potential of the skills and capacities of the workers they dehumanize in that fashion. Individual workers need trade union protection to block-off sweat-shop routes to short-term profitability; and workers in general need strong trade unions to keep rising wages as the key driver of the consumer demand so vital to long-term U.S. economic growth. Stronger trade unions are not part of the American economic problem. Rather, it is their weakness which is the problem: leaving one American employer after another free to survive by dragging down wages and by intensifying working conditions in a desperate collective race to the bottom. It is the continuing weakness of American trade unions which helps explain why, when the ITCU in 2014 graded 139 countries against 97 indicators of working conditions – seeking to discover the world’s worst countries for workers – the U.S. scored only a 4 on a six point scale (Denmark scored best – a 1): with the ITUC finding in the U.S. case “the government and/or companies engaged in serious efforts to crush the collective voice of workers putting fundamental rights under continuous threat.”[12]

Consequences of the contemporary weakness of American Labor.

The conventional wisdom in conservative circles on both sides of the Atlantic is that the economies strengthen as trade unions decline. But the reality in contemporary America is entirely otherwise: dwindling trade union power and long-term U.S. economic and social under-performance now go together; and that is evident in at least four different ways. One is that with trade unions weak after years of employer and political resistance, wages have actually stagnated or fallen since 2000 for the vast majority of American workers: with hourly wage rates falling particularly severely for low-wage workers, and for young workers without college degrees. Currently almost one in four Americans in full-time employment earns less than the poverty rate for a family of four; and those proportions are higher still for Hispanic Americans (42.2%) and for African-Americans (35.7%). A second is that wages remain particularly low in industries in which trade unionism is particularly weak – across manufacturing as a whole, across retail, agriculture, leisure and entertainment – with serious consequences for pay inequality within key economic sectors. Top restaurant industry CEOs, for example, made a staggering 721 times more than the minimum wage workers they employed in 2013:[13] a ratio no strong trade union would ever tolerate. A third is that, because wages are generally low in spite of rising labor productivity, the rate of economic recovery from the 2008-9 recession has been singularly slow. The demand for new commodities has simply not been there in the volume required to pull America’s factories back to full output and to full employment.[14] So that fourth, with total demand across the economy remaining so low, resulting levels of unemployment and under-employment remain disproportionately high. To date, two-thirds of states still haven’t recovered all the jobs they lost in the recession,[15]and that includes 14 of the 22 states with those strident right-to-work laws on their books that are supposed to make their states particularly employer-friendly. Meanwhile, “the broadest measure of unemployment, which includes people who are working part-time because full-time positions are not available, [still] stands at 12.1%.[16]

An America free of trade unions is not, therefore, free of the labor market defects that first called those unions into existence.

Rather and on the contrary, as trade unions have weakened in the United States in the years since the Reagan presidency, income and wealth inequality has grown, poverty has remained entrenched, and vital public services such as education and law enforcement continue to be underfunded. A strong trade union presence in public life does more than protect individual workers against excessive exploitation. It also helps create a public culture that recognizes the limits of individualism, the need for cooperation and trust between all of us active in the U.S. economy, and the vital role that fairness and equity play in creating a genuinely free and prosperous society. Conservatives appear to recognize full well this link between trade union activity and social justice: that is why they work so assiduously to undermine trade unionism whenever an opportunity occurs. Those of us who care for social justice need therefore to be equally assiduous in our defense and advocacy of strong trade unionism.[17] We need to push back as hard as we can: for as income and wealth inequality intensifies in contemporary America, and the gap widens between the haves and the have-nots, this is not the time to weaken trade unionism further. It is time instead to build the strong collective institutions vital to a successful progressive coalition. The reconstruction of a vibrant labor movement will simply not happen on the scale we now require until progressives seize every opportunity to speak out clearly in defense of the benefits of strong trade unionism. When the judges get it as wrong as they did on this occasion, that defense becomes even more vital than it was before.

[1] Catherine Fisk, Harris v Quinn Symposium; Court departs from federalism, First amendment jurisprudence: posted July 3, 2014: available at http://www.scotusblog.com/2014/07/harris-v-quinnsymposium-court-departs-from-federalism-first-amendment-jurisprudence/

[2] Ibid

[3] Supreme Court of the United States, Opinion of the Court,No 11-681, Pamela Harris et al, Petitioners, v Pat Quinn, Governor of Illinois, et al, June 30, 2014: available at http://www.supremecourt.gov/opinions/13pdf/11-681_j426.pdf

[4] Corey Robin, “The Republican War on Workers’ Rights,” The New York Times May 18, 2014: available at http://opinionator.blogs.nytimes.com/2014/05/18/the-republican-war-on-workers-rights/?_php=true&_type=blogs&_r=0

[5] Gordon Lafer, The Legislative Attack on American Wages and Labor Standards, 2011-12. Washington DC: The Economic Policy Institute, Briefing Paper #364, October 31, 2013: available at http://www.epi.org/publication/attack-on-american-labor-standards/

[6] Ibid.

[7] Elise Gould and Heidi Shierholz, The Compensation Penalty of “Right-to-Work” Laws, Washington DC: The Economic Policy Institute, Briefing Paper #299, February 17, 2011: available at http://www.epi.org/publication/bp299/

[8] Tom McCarthy and Samuel B. Gedge, Harris v Quinn Symposium: A quiet blockbuster?Posted July 2, 2014: available at http://www.scotusblog.com/2014/07/harris-v-quinn-symposium-a-quiet-blockbuster/

[9] Paul Waldman, ‘The common thread of Supreme Court decisions: You’re on your own,” The Washington Post, June 30, 2014: available at http://www.washingtonpost.com/blogs/plum-line/wp/2014/06/30/the-common-thread-of-supreme-court-decisions-youre-on-your-own/

[10] Ezra Klein, “The misleading framing of ‘right-to-work’,” The Washington Post, December 12, 2012: available at http://www.washingtonpost.com/blogs/wonkblog/wp/2012/12/12/the-misleading-framing-of-right-to-work/

[11] Michael Kinsley, “The Conservative Case for Right-to-Work Laws,” Bloomberg, December 13, 2012: available at http://www.washingtonmonthly.com/ten-miles-square/2012/12/the_conservative_case_for_righ041769.php

[13] Lawrence Mishel, Ross Eisenbury and Alyssa Davis, Top Restaurant Industry CEO Made 721 Times More than Minimum-Wage Workers in 2013. Posted on EPI website July 2, 2014: available at http://www.epi.org/publication/top-restaurant-industry-ceos-721-times-minimum/

[14] Robert J. Samuelson, ‘Capitalists wait for the recovery, while labor loses out,” The Washington Post, September 8, 2013: available at http://www.washingtonpost.com/opinions/robert-samuelson-capitalists-wait-while-labor-loses-out/2013/09/08/649dcc1a-1711-11e3-be6e-dc6ae8a5b3a8_story.html

[15] Ben Leubsdorf, “Two-Thirds of U.S. States Still Haven’t Recovered the Jobs Lost in the Recession,” The Wall Street Journal, June 20, 2014: available at http://blogs.wsj.com/economics/tag/jobs-recovery/

[16] Nelson D. Schwartz, “Hiring is strong and Jobless Rate Declines to 6.1%,” The New York Times July 3, 2014: available at http://www.nytimes.com/2014/07/04/business/jobs-data-for-june-released-by-labor-department.html

David Coates holds the Worrell Chair in Anglo-American Studies at Wake Forest University. He is the author of Answering Back: Liberal Responses to Conservative Arguments, New York: Continuum Books, 2010.

He writes here in a personal capacity.

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