Unions Need to Evolve to Survive

The last several weeks have seen a sea change for unions in the United States. After decades of protection from labor-friendly administrations and judges, the tide has turned and is no longer in their favor.

And while many in the labor movement may see nothing but one defeat after another, there is a real opportunity for a fresh start and a return to labor’s roots, while also forgoing the recent history that labor has had in using coercive means to bolster fundraising and membership.

The Rapidly Evolving Landscape

In one decision after another, the Trump administration has sought to curtail union activity where it could. First, over Memorial Day Weekend, it restricted the amount of time federal employees could spend on union activity while on the clock.

The president then followed with overturning an Obama rule that allowed unions to take dues directly from Medicaid payments to providers. The practice of ‘provider payment reassignment’ had funneled hundreds of millions of dollars from workers to unions.  

In between these bookend executive branch actions was the real whopper though: the Supreme Court decision in Janus v. AFSCME, a case that marks a watershed moment in modern labor politics.

"So many of us have been forced to pay for political speech and policy positions with which we disagree, just so we can keep our jobs. This is a victory for all of us." Mark Janus, after his Supreme Court victory this morning. https://t.co/ZV3YZT5AKH

— reason (@reason) June 27, 2018

Public employee unions are no longer able to mandate that non-members contribute to their cause. After years and years of expanding their political footprint into areas that no longer resemble labor advocacy, and in some cases contradict their own membership’s beliefs, workers decided that they‘d had enough.

The Janus case shifts the burden back to the unions. No longer can they demand every employee pay into their coffers, and in fact, employees must now opt-in for the unions to collect anything at all.

This specifically impacted the same segment of employees as the provider payment reassignment: in many cases these were private employees being paid with public health funds, leading to a classification as “partial public employees”, or PPEs.

In some states, the National Review reports that PPE unions are formed with only ten percent of the eligible employees casting a vote in favor. It is then made notoriously difficult for employees to rescind membership. Unions cashed in when these workers failed to opt-out.

The massive impact of Janus was predicted by even the largest and most engaged of unions. As reported by The 74, The National Educators Association anticipated losing over 300,000 members in the first two years, and reacted by slashing $50 million from its budget.

In an irony of ironies, an organization charged with protecting jobs preemptively laid off nearly ten percent of its workforce. This is the same organization that donated $20 million to political candidates over the 2017-2018 cycle according to OpenSecrets.org.

Therein lies the issue for unions: do they continue to spend money hand over fist in trying to elect favorable candidates, while also advocating divisive issues irrelevant to their base’s employment? Or do they shift gears and work to engage a stronger and more committed membership?

And while the numbers reported already suggest that unions have an uphill battle – agency fees ceased being deducted for 70,000 public employees in California the week Janus was decided – that is where the opportunity for them lies.

70,000 Public Employees in CA Freed From Compulsory Union Fees; More to Follow? #Janus #SCOTUS https://t.co/YjIOcKxd0C

— Andrew Forcier (@ForcierForMT) June 29, 2018

Mandatory union membership and agency fees are now a thing of the past. Instead of embracing that and carving out a path forward, unions have called upon their allies in the Democratic party to undermine Janus.

What do each of the proposed ‘solutions’ have in common? They perpetuate the coercive means by which unions grew to monolithic stature, but also by which they began to crumble.

In Hawaii, taxpayers would directly and involuntarily fund unions rather than the employees provide dues themselves. Vermont legislators would have people pay for union representation in grievances – even if they didn’t want it. This is just the start, and other politicians have already shown whose side they are on.

The reality is that there is a non-coercive method by which unions could build a strong base, and gird themselves for the battles that lay ahead.

Members-Only Unions

Members-Only Unions are exactly what they sound like: a labor organization that collects dues only from members, and only represents those members. The latter part is the key to the future of unions.

Until Janus there was no reason for unions not to represent non-members. If payment of agency fees were a veritable requirement for all employees in a bargaining unit, it was always in the union’s interest to represent non-members. They got more cash, and had the ability to involve themselves in more situations.

Members-only unions only existed where unions found difficulty in gaining the majority support necessary to represent the entire bargaining unit.

The Century Foundation does an excellent job of outlining three case studies where members-only unions have been effective tools for organizing labor. The important common characteristic in all three situations is not that they could not get majority support, but that the payment of dues was non-coercive.

The provider payment reassignment rule implemented by the Obama administration showed what lengths unions will go to in not only demanding payment, but making the worker a tangential party to the process.

Members-only unions require a committed dues-paying membership. They require grassroots organization and involvement. The Century Foundation’s piece suggested that they can ‘revitalize workplace democracy’ suggesting that these are inherently fairer unions as well.

Nearly all of the activities protected in the National Labor Relations Act are not the sole province of a union. Any organized unit of employees may avail themselves of them, and expect similar protections.

The one caveat seems to be on the ability to bargain collectively, which has yet to be formally decided. The only case to come close to testing as such resulted in no complaint being filed.

The Path Forward

It is only a matter of time now before agency fees in the private sector become an issue. Complications with this coming from the courts have already been outlined, but the hit that unions are about to take to membership may cause them to question where dollars are best spent.

The Trump administration is likely still looking for ways to strip away the favors granted to unions by past administrations. The November election results will provide insight into whether Congress can afford to spend any capital on making Right To Work laws a federal issue.

Already, efforts are underway to outline worker protections in legislation like the Employee Rights Act. The bill would codify worker privacy protections and provide mechanisms to ensure that unions are accountable to their membership.

Some say the unions face a "crisis of relevance". To illustrate, only 52% of educators, largely thought of as one of the committed public sector union workforces, feel the union is 'absolutely essential'.

As teacher pay languished for years, with unions supposedly bargaining for better, it took largely self-organized grassroots movements in states like Arizona, Oklahoma, and West Virginia to get results.

Unions have a choice now: they can embrace the top-down support of legislators whose allegiances and priorities will be fickle at best, or they can start working from the bottom up – to re-engage their languishing base.

There is no clear path forward on the former. It will depend on public opinion in individual states, and also subject these efforts to constant court battles, all the more certain now that there will be another conservative judge extending the SCOTUS majority.

But if progressive politics has shown anything in this cycle, it is that local engagement is working. Its proponents are looking to bring that same approach to the national level.

All of this could bring a level of accountability that unions have not had for decades. Unions have favored tenured, dues-paying members over the worker in general, and their fear of a wave of departures only emphasizes the tenuous connection their members have to the whole.

Engaging every employee will take more time, effort and energy – three things that unions will have more of if they divest themselves of campaigning on political wedge issues.

But to keep up business as usual, unions will need money, and that seems to be in shorter and shorter supply. This was a fact rather conspicuously acknowledged in the Janus dissent.

Justice Kagan has the dissent: "Public employee unions will lose a secure source of financial support" https://t.co/lRhgFnBmnx pic.twitter.com/isLCJYkMWA

— Jamie Dupree (@jamiedupree) June 27, 2018

Taxing current dues payers more for the lost revenues would be the wrong approach. Several unions also face huge potential repayment obligations in light of Janus and other similar litigation.

Unions should refocus, engage their core, and rebuild from the ground up. The means to mandate contributions to the cause will likely never return, but that doesn’t mean that unions are facing extinction.

Only those that fail to adapt suffer that fate.