Saturday, February 24, 2018

Janus-faced about 'Janus': Supreme Court hears major First Amendment labor case, and 'it's complicated'

The U.S. Supreme Court hears oral argument in Janus v. AFSCME (SCOTUSblog) on Monday, February 26.  The problem in a nutshell is the extent to which a public employee can be compelled to associate with a union consistently with the First Amendment freedoms of expression and association.

The Court already held, some years ago, that a public employee cannot be compelled to pay the portion of union dues that supports political activity.  But mandatory payments to support the union in collective bargaining have been upheld upon the logic that employees otherwise would be able to opt out and benefit from union collective bargaining as free-riders, and, ultimately, the union would be decertified for lack of members.  So it’s got to be all in with the union, or no union for anyone.

This is an agonizing problem for a libertarian.  One wishes to protect the right to organize but is loath to compel anyone to do so.  Honoring the latter priority undermines the former.

When I changed jobs in 2011 from the University of Arkansas system to the University of Massachusetts system, I moved from a non-union shop to a union shop.  My first years at UMass, I opted out of the political dues and paid only to be a member of the bargaining unit—“agency,” it’s called.  And I resented having to pay for that. 

Certainly Arkansas was not a bed-of-roses workplace experience.  I had my challenges there and had to spend a good chunk of my personal savings on legal fees.  Now faculty there are fighting to preserve tenure.  I can see where a union might help.

Nevertheless, moving to UMass, I resented being compelled to join the union.  My experience with unions had been that they too often protect people in the workplace who don’t pull their weight, and they prevent people in the workplace who pull more than their weight from being rewarded accordingly.

I have more experience with unions now.  And I was right.  They often protect people who don’t pull their weight, and unionization prevents people who pull more than their weight from being rewarded accordingly.

At the same time, I’ve come to understand that plenty of fault for unions working, or not working, can be laid at the feet of employers, too.  It’s complicated.

I declined to become a union member at first at UMass and sought instead to leverage my own hard work for superior reward.  That didn’t work.  At best, I got into the highest echelons of the contractual raise pool.  We’re talking about a distinction of maybe a percentage point.  I could have gotten that with much less work.  I’ve hardly been able to negotiate my own terms of employment.

To the contrary, like many an employer, the university seems to have a love-hate relationship with the union.  Even while administrators seethe with loathing for their union adversaries, management is unwilling to dance with any other and jealously guards the bargaining table against rivals.  That’s the dirty little secret of public-sector union shops: management and labor are on the same side when it comes to making sure that no one else gets to play the game.  A truly free market, with full information and a healthy balance of labor supply and demand: if such a thing existed, it would be bad news for both sides.  Meanwhile the individual worker gets left on the sidelines.

So unable to make any headway for myself, and upon later experience and observation, I decided to throw in my lot with the labor movement.  Before union membership, my agency dues were $580 for the year in 2016.  That was deducted from my check, even though I was excluded from the bargaining table and stuck with whatever contract concessions someone else decided for me.  Now as a full member of the union, based on my last paycheck, my dues are about $1,285 per year.  So about two-thirds of my union dues go to political activity that I don’t necessarily agree with.

That’s my catch-22.  Membership is the only way to get a seat at the table, and having a seat at the table is the only way to work against abusive employment practices.  The labor market being what it is, there is abuse.  And there are good people in my union who are working hard to fight it.

I’ve been a student of the First Amendment for a long time, and I don’t know what should happen in Janus, whether from a detached scholarly perspective, or for my own best interests.  It rubs me the wrong way being compelled to participate in organized labor and forego my individual economic liberty.  To have my voice heard, I have to let my pocket be picked by political causes I disagree with.

At the same time, the unions are right:  The Janus challenge is about union busting and worker exploitation, not civil liberties and not economic liberty.  In academics, union busting is sure to hasten the end of tenure and the annihilation of academic freedom.  That hardly seems a result that honors the First Amendment.

I admit: I’m Janus-faced about Janus.  But on Monday, I'll be wearing my AFT T-shirt.

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