USA: Janus v AFSCME Part 3: The Case for Unions

Source: https://www.progressivebumperstickers.com

Update decision has been rendered: here and the SCOTUS blog post here.

As promised here is the third and final (maybe) post on unions and their relevance in light of the Janus Vs AFSCME case currently being examined in the US.

My guest author here is arguing in favour of continued union relevance while making the case that the traditional union as we know it has some problems which need to be addressed.

If you are interested, you can follow these links to find Part 1 and Part 2.

Paul Bergin was an assistant US attorney, federal prosecutor and defence lawyer. He famously represented celebrities like Queen Latifah, Naughty by Nature and Lil' Kim. He was a named partner at Pope, Bergrin & Verdesco and by all accounts was a talented defence lawyer. In March 2013, Paul Bergin was convicted of 23 counts of Conspiracy to murder a witness, bribery, fraud, racketeering, drug dealing, and prostitution. He was sentenced to life in prison. We can all agree that Paul Bergin was a corrupt lawyer, using his position of power over his clients to commit multiple felonies. However, because Begin was corrupt does this mean all lawyers are corrupt?

Are there corrupt Unions? One needs only to google the Teamsters union, the operating engineers, the longshoreman, or the labourers Union to get a laundry list of bribery, fraud, embezzlement and more serious crimes. Yet similarly to Mr Bergin does this mean that workplace advocacy on a whole needs to end? This is admittedly a bit of an extreme metaphor but it helps us frame what is being debated in Janus Vs. AFSCME.

At its core Janus Vs. AFSCME is about the union imposing forced membership, which included union fees to Political Action Funds, which were then used to primarily support the Democratic party in the US. Janus is contending that this system violated his constitutional right to freedom of speech by using his money to support a political party that he did not support. The ramifications of this case could be widespread if the Supreme Court overturns the union’s ability to impose forced membership or mandatory Union dues.  

This is a particularly interesting debate due to what is called the “duty of fair representation.” The duty of fair representation states that the union must fairly represent all employees and may not act in a way that is arbitrary, discriminatory or in bad faith. In Illinois where this case is being heard the duty of fair representation is applied regardless of membership in the union. In other words, an Employee who is not a card-carrying member of the union or does not support the union can still take the union to court if it fails to represent him or her. One could argue that if the union is bound legally to represent an employee and the employee benefits from the Collective Agreement, it would be reasonable for the union to charge the employee some sort of union dues.

Similarly to Illinois, in Canada, we have what is called the “Rand Formula,” which states that in a unionized environment all employees must be covered by the collective agreement regardless of membership and must be represented by the union fairly.

Now we come to the rub: where does fair representation end and infringement on free speech begin?

It is my position that there is a real need for continued workplace advocacy. Unions are a natural counterbalance to our capitalistic society, and we would be mistaken if due to unions overstepping we throw the baby out with the bathwater. It is interesting in Canada that mainstream union membership is on the decline, however, there is a movement of progressive unions where membership is increasing dramatically. These unions are based on the European social democratic model where the employer and employees are seen to be working in concert as opposed to the Marxist view of the class struggle between employer and employees.

These progressive unions have a number of core tenants which we do not have time to review here; but of particular importance to this discussion is Freedom of Association. This ideology states that we should have the inherent right to support or associate with whatever groups we desire. As a result, these unions oppose any political contributions. Interestingly, where a mainstream union member in Canada pays anywhere from 3%-15% of their hourly wage in dues, these progressive unions charge the lowest dues in Canada at anywhere from 1%-3% of hourly wages.

There can be little debate that unions have played a pivotal roll in shaping the employment conditions of the western world. It was unions that fought for the five-day work week, overtime pay, paid holidays, sick leave, and workplace safety to name a few. However, large mainstream unions have seemingly lost touch with their membership and have become akin to political parties themselves. It is my contention that rather then do away with workplace advocacy we need to rethink what a union should be in the 21^st century. The Canadian progressive labour movement seems in my opinion the appropriate place to start.

Great insight into the rising trend of progressive unions in Canada and abroad.

To frame both, (including mine, three) arguments together, we all ultimately hold a view that there is a problem with unions as they stand. all three of us, however, take slightly different views as to what course of action needs to be taken in order to correct these failures.

From injecting higher levels of competition to the view that unions are a massive market failure needing to be corrected to a view of hopefulness, that despite the actions of a few (large) players, there is still a need and a hope for the industry of labour representation and that perhaps the market is facilitating this transition on its own.

What are your views on this? Do you believe unions are still relevant? Are they in need of a change to a more progressive model? Or finally, has their purpose been served, leaving them as little more than a rent-seeking shell of past days?

Feel free to comment below.