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“This Is No Small Development”: Supreme Court Split Saves Public-Sector Unions

Republicans have made no secret of the fact that they fear the Supreme Court moving to the left, even a little, in the wake of Antonin Scalia’s death. But we were reminded this morning that in the late justice’s absence, the high court’s capacity for conservative change has already been curtailed.

CNBC reported on the release of a decision that wasn’t expected until June.

The U.S. Supreme Court on Tuesday split 4-4 on a conservative legal challenge to a vital source of funds for organized labor, affirming a lower-court ruling that allowed California to force non-union workers to pay fees to public-employee unions.

The court, shorthanded after the Feb. 13 death of conservative Justice Antonin Scalia and evenly divided with four liberal and four conservative members, left intact a 1977 legal precedent that allowed such fees, which add up to millions of dollars a year for unions.

The case is called Friedrichs v. California Teachers Association, and the Supreme Court’s “decision,” such as it is, has been posted online here. It’s extraordinarily brief, however: it reads in its entirety, “Per Curium. The judgment is affirmed by an equally divided Court.”

This is no small development. At issue in this case was a seemingly obscure issue – public-sector unions’ “agency fees” – but while this may seem like a tangential dispute, the outcome had the potential to disrupt many labor unions nationwide.

Revisiting our previous coverage, The New Republic’s Elizabeth Bruenig summarized the issue this way:

Agency fees work like this: Public sector unions are required to cover all employees in a given bargaining unit, whether the employees opt into union membership or not. Public sector employees (which include EMTs, firefighters, public school teachers, social workers, and more) thus pay agency fees to their respective unions even if they are not union members, because public sector unions work on behalf of everyone in their bargaining unit, not just union members.

Agency fees do not fund unions’ political activities, but rather strictly the costs of union grievance-handling, organizing, and collective bargaining. In the 1977 case Abood v. Detroit Board of Education, the Supreme Court upheld the right of public sector unions to extract agency fees from public sector workers, and found that agency fees do not violate employees’ freedom of speech, so long as they do not fund unions’ political activities.

The trouble, according to many on the right, is that literally everything unions do – even collective bargaining itself – is inherently political, even if it’s unrelated to campaign activities. As a result, the Friedrichs case offered the justices an opportunity to overturn the Abood precedent.

And if Scalia had lived, that’s almost certainly what the justices would have done in a 5-4 decision. Instead, the court was evenly split.

Make no mistake: this case represented a major threat to the existence of unions that rely on agency fees. Had the court sided with the right, public-sector unions would still bargain on behalf of public-sector workers – union members and non-members alike – but workers’ dues would have been voluntary.

This case will go back to the Supreme Court again in the not-too-distant future, but for now, a 4-4 split saved public-sector unions, leaving them to fight another day.

 

By: Steve Benen, The Maddow Blog, March 29, 2016

March 30, 2016 Posted by | Public Sector Unions, Republicans, SCOTUS | , , , , , , | Leave a comment

“Scott Walker’s Race To The Bottom”: His Plan Is As Pure An Expression Of Supply-Side, Trickle-Down Economics As You’ll Find

Scott Walker wants to take his fight against organized labor national. Today he released a plan for a new war not just on union representation, but on worker rights in general.

It’s quite a document, one we might call Scott Walker’s Race to the Bottom.

I have no doubt that Walker is sincere in his desire to see every labor union crushed and every vestige of workers’ power banished — or, in his lingo, “flexibility.” I’d also be surprised if any of the other candidates objected to any part of it. So the plan is worth understanding if you want to grasp what today’s GOP is offering today’s workers.

While he doesn’t say so explicitly, what Walker seems to hope for is really a world without any labor unions at all, or at the very least a world where unions are so weakened that they are unable to advocate for anyone. Here are the major parts of his plan:

Eliminate the National Labor Relations Board. Walker says the NLRB is “a one-sided advocate for big-labor special interests,” but the truth is that Democrats appoint pro-labor members to the board, while Republicans appoint anti-labor members to the board. Transferring the NLRB’s authority to adjudicate labor disputes to the courts would probably be a mixed bag in terms of worker rights.

“Eliminate big-government unions.” This is pretty straightforward. You don’t like unions? Get rid of ’em. Today there are around seven million Americans represented by a public sector union, and around one million of those are employed by the federal government (including the Postal Service). If Walker got his way, the latter group could kiss their representation goodbye — and given his record, it’s pretty clear he wouldn’t mind getting rid of the state and local public-sector unions as well.

Institute a national “right to work” law. The phrase “right to work” is a triumph of conservative PR, because how could anyone object to a right to work? What it means in practice, however, is that in places where unions negotiate salaries and benefits for workers, those workers can’t be required to contribute to the union that got them those salaries and benefits (no one can be required to join a union, but where there are no right to work laws, you can be required to contribute when the union negotiates on your behalf). Whenever a right to work law is being debated in a particular state, Republicans argue that because the law would weaken unions, it will draw employers who don’t want to have to bother with the high wages and good benefits those unions can negotiate.

Which, the evidence suggests, is probably true. But such laws have another effect: they pull down wages and benefits. So that’s the bargain a state makes when it passes a right to work law:  more jobs, but worse jobs.

Think about what would happen if you took this policy national. On a state level, it’s possible for a right to work law to draw a factory from one state to another. But if every state was a right to work state, then that incentive to move is eliminated. The decrease in union representation would spread, which drives down wages and benefits for everyone. Whether you think that’s a good thing depends on whether you are concerned with the interests of large business owners or the interests of workers.

There are a number of smaller ideas in Walker’s plan, like eliminating the requirement that federal contractors pay the “prevailing wage” (i.e. union wage) for construction projects, further reinforcing what seems to be Walker’s belief that the problem with unions is that they let workers earn too much money. And I have to highlight this bit:

“The Obama administration’s government-knows-best proposed rules will require employers to pay overtime rates to greater numbers of salaried works and require federal contractors to provide paid sick leave. Unfortunately, these rules will only reduce wages and deprive workers of the flexibility to balance work and life commitments.

“On Day One of my administration, I will repeal any regulation that reduces employee flexibility, as well as work for changes to federal law to allow time off for overtime hours worked. My changes will protect workplace flexibility by ensuring that misguided big-government mandates do not stand in the way of individuals and families.”

So Walker will roll back the Obama administration’s efforts to make more workers eligible for overtime pay and sick leave, because that would mean more “employee flexibility.” Indeed, just imagine the worker making $7.50 an hour saying to herself, “Boy, now that I have the flu I sure am glad I have to choose between dragging myself into work or staying home and losing my pay. Thanks for the flexibility, President Walker!”

Though Walker’s plan is couched in all kinds of pro-worker rhetoric like that (and endless repetition of the phrase “union bosses”), in truth it’s about as pure an expression of supply-side, trickle-down economics as you’ll find. Its basic principle is that once we eliminate workers’ ability to bargain collectively, everything will turn out great for everyone.

But here’s what we know: union membership has been declining for decades, while incomes have been stagnant and Americans have felt increasingly at the mercy of employers who treat them like interchangeable cogs who can be manipulated, surveilled, and tossed aside at the employer’s whim. There’s no question that Scott Walker succeeded in creating a politically beneficial showdown with public sector unions in Wisconsin. But how many Americans think that the problem with our economy is that too much power in the workplace lies in the hands of workers?

 

By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line, The Washington Post, September 14, 2015

September 16, 2015 Posted by | Organized Labor, Scott Walker, Workers Rights | , , , , , , , | Leave a comment

“The Right Question To Ask About Government”: What Steps Does Government Take To Empower Citizens And Expand Their Rights?

Many conservatives and most libertarians argue that every new law or regulation means that government is adding to the sum total of oppression and reducing the freedom of individuals.

This way of looking at things greatly simplifies the political debate. Domestic issues are boiled down to the question of whether someone is “pro-government” or “anti-government.”

Alas for the over-simplifiers, it’s an approach that misreads the nature of the choices that regulators, politicians and citizens regularly face. It ignores that the market system itself could not exist without the rules that government establishes, beginning with statutes protecting private property and also the various measures against the use of force and fraud in business and individual transactions.

More important, it overlooks the ways in which the steps government takes often empower citizens and expand their rights. Nowhere is this more obvious than in the realm of work.

The run-up to Labor Day this year brought a spate of news articles and commentaries on the actions of the National Labor Relations Board and other government agencies to strengthen the rights of workers and enhance their bargaining power relative to employers.

Last week, Noam Scheiber offered an important account in the New York Times of how the Obama administration has been “pursuing an aggressive campaign to restore protections for workers that have been eroded by business activism, conservative governance and the evolution of the economy in recent decades.”

Among the milestones Scheiber cited was a recent U.S. Court of Appeals decision upholding an Obama-era rule providing minimum-wage and overtime protections to nearly 2 million home health-care workers. They certainly felt empowered by government, not oppressed. So did the employees of contractors and franchises who were granted collective bargaining rights by the National Labor Relations Board.

Fast-food chains provide the obvious example of how loopholes related to new work arrangements and franchise agreements can let employers out of their traditional obligations. In the case of purveyors of hamburgers and chicken tenders, the parent companies set all sorts of detailed requirements for how these businesses should operate — and then turn around and claim that when it comes to workers’ rights, their franchises are utterly independent.

One of the most fascinating struggles, still ongoing, is over new regulations that the Labor Department is trying to establish to ensure that those who give investment advice to people with 401(k)s and individual retirement accounts base their judgments on the best interests of their clients. Along with defined-contribution retirement plans, they involve some $13 trillion in investments.

The Labor Department proposal would require investment advisers to abide by a “fiduciary” standard — meaning that the best-interest-of-the-client yardstick should be their sole criterion in offering counsel to clients. If this seems obvious, that’s not what the current law requires. As Labor Secretary Thomas Perez said in an interview, the standard now is only that an investment be suitable. “What the hell is ‘suitable’?” Perez asked, noting that he would hope for more than just “suitable” advice from his doctor.

The issue is whether some investment advisers might offer conflicted guidance influenced by “backdoor payments and hidden fees often buried in fine print,” as the Labor Department put it in a document explaining why change is needed.

“I don’t believe that folks who provide advice wake up with malice in their hearts,” Perez said. But he added that it is only natural that advisers might lean toward investments from which they can also benefit. “Surprise, surprise, if you have four or five products that are suitable and one gives you a commission, guess where you will go?” The new rules, which are being heavily contested by parts of the financial industry, are an attempt to realign the incentives, Perez argued.

The investment-rule battle is a near-perfect example of how the government is plainly promoting free markets — what’s more market-oriented than building an investment portfolio? — but is also trying to make sure that the rules regulating the investments tilt toward the interests of the individual putting money at risk.

As long as there are markets, government will have to establish rules determining how they operate. These necessarily affect the interests of market participants. Many of the choices are not between more or less government. They are about whether what government does provides greater benefit to workers or employers, management or unions, individual investors or investment firms.

“Which side are you on?” This question from the old union song is the right question to ask about government.

 

By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, September 6, 2015

September 7, 2015 Posted by | Government, Labor Day, Workers Rights | , , , , , , , , | 1 Comment

“Separating Fact From Advocacy”: How The Media Enable The Anti-Worker Movement

NPR Morning Edition aired a report this week that reeked of anti-union bias, and inadvertently promoted the Koch brothers’ agenda to reduce collective bargaining rights, which means smaller wages and benefits.

The report was rife with errors, missing facts, bollixed concepts, and a meaningless comparison used to impeach a union source.

Below I’ll detail the serious problems with reports by Lisa Autry of WKU Public Radio in Bowling Green, Kentucky, but first you should know why this matters to you no matter where you live.

A serious, very well-funded, and thoroughly documented movement to pay workers less and reduce their rights, while increasing the rights of employers, is gaining traction as more states pass laws that harm workers. A host of proposals in Congress would compound this if passed and signed into law.

News organizations help this anti-worker movement, even if they do not mean to, when they get facts wrong, lack balance, provide vagaries instead of telling details, and fail to apply time-tested reporting practices to separate fact from advocacy.

The advocates are sophisticated. They pose as “nonprofit research organizations,” but are better described as ideological marketing agencies.

There’s nothing wrong with marketing ideology, only with not being honest about what you are doing.

These tax-exempt outfits operate on the model of Madison Avenue; reinforcing instincts, hopes, and desire to stir demand for what may not be good for you or be of dubious effectiveness.

Carefully read, their reports are mostly assertions with a sprinkling of cherry-picked facts and projections, which I have found, reviewing them years later, turned out to be wrong.

Midwestern and southern states have been enacting anti-worker laws that take away collective bargaining rights, while forcing unions to represent people who do not share in the costs of collective bargaining and protecting workers in grievance proceedings. Other laws directly reduce compensation, especially pensions, although police and firefighters are generally shielded.

A key part of this strategy is creating the impression that unions are bad for workers. This goes to a problem that Presidents John Adams and James Madison feared would destroy the nation – the rise of a “business aristocracy” that would trick people whose only income was from wages into supporting policies that would be good for the business aristocrats, but bad for workers.

The NPR report was about Kentucky counties that are passing so-called “right to work” laws, a worthy topic for sure.

Early on, reporter Lisa Autry makes this untrue statement:  “Democrats have rejected efforts to allow employees in unionized companies the freedom to choose whether to join a union.”

No law requires workers to join a union under a binding U.S. Supreme Court decision. Congress outlawed the “closed shop” in the 1947 Taft-Hartley Act, formally known as the Labor Management Relations Act.

Workers at firms with union contracts are only required to pay dues that cover the costs of representing them in negotiating contracts and grievance procedures.

Russell D. Lewis, the NPR Southern bureau chief who edited Autry’s report, told me he was only vaguely aware of the Taft-Hartley Act and did not recognize her error.

From an economic perspective, what so-called “right to work” laws do is allow workers to enjoy the benefits of collective bargaining and contract enforcement without sharing in the costs. This is a form of moral hazard that weakens unions and makes it likely that they will fail because of what economists call the free rider problem: Those who do not share in the costs of negotiating contracts and enforcing them enjoy the same benefits and protections as those who do.

Autry’s NPR report failed to mention a central fact – Kentucky’s highest court ruled in 1965 that cities and counties cannot adopt local collective bargaining laws. In a case that unions brought against Jesse Puckett, mayor of Shelbyville, Kentucky’s highest court ruled (emphasis added):

it is not reasonable to believe that Congress could have intended to [leave to local governments] the determination of policy in such a controversial area as that of union-security agreements. We believe Congress was willing to permit varying policies at the state level, but could not have intended to allow as many local policies as there are local political subdivisions in the nation. It is our conclusion that Congress has pre-empted from cities the field undertaken to be entered by the Shelbyville ordinance.

In reports for her local NPR station, Autry never cited this. She did, however, a report on a politician who told her that equal numbers of people believe a county-level ordinance would be legal or illegal. In another report, on whether counties have the legal authority to pass such laws, she said, “the answer depends on who you ask.”

It took me less than a minute using an Internet search engine to find the 1965 case. It was also cited in a nuanced and balanced January news report in the Louisville Courier-Journal. Even cub reporter Gina Clear of the News-Enterprise in Elizabethtown, KY provided coverage that was balanced and far better informed than Autry’s.

Did Autry fail to report the court decision because of laziness, poor judgment, or anti-union bias? I cannot give you a definitive answer because Autry and Kevin Willis, WKU’s news director, ignored my repeated requests for an interview, passing the buck to Lewis.

Strange, journalists who expect people to return their calls but do not hold themselves to that standard.

My review of several dozen Autry pieces suggests a bias against unions and workers.

Autry tends to quote anti-unionists at length, but paraphrase what union leaders say, though she did one report that explained union perspectives.

She frequently does one-sided reports using language that assumes only anti-union policies have merit, and quotes only anti-union sources. She also did a one-sided report against increasing the minimum wage.

Lewis, the NPR editor, noted that Autry quoted a United Auto Workers local official saying that Alabama and Mississippi, both with so-called “right to work” laws, have “some of the worst education, highest poverty. What happens is that as they reduce the union labor, less and less [sic] people are making a decent wage.”

But Autry followed that quote with a bizarre point to impeach the union official’s remarks: “Actually, since World War II, income and job growth have increased faster in right-to-work states.”

That might be relevant to a story about how Jim Crow laws kept, and still keep, blacks from many well-paying jobs. Or in a story about how taxpayer investments, especially in the Interstate Highways, canals, and electricity, opened the South to building factories after the war.

Autry cited no source. Lewis sent me a report by the Mackinac Center, another libertarian marketing agency.  It is much more nuanced than Autry’s flat statement.

And actually, to invoke Autry’s word, what would be relevant would be current data on household incomes in states with and without laws requiring workers to pay for the benefits they get from any union that represents them.

In 2013 the median household income (half make more, half less) was $49,087 in so-called “right to work” states, but $56,746 in other states. That means in the states with diminished worker rights people have to work a full year plus eight weeks to get what their peers earn in a year.

Autry’s piece and Lewis’s editing seem to violate NPR’s ethics handbook, which says “good editors are also good prosecutors. They test, probe and challenge reporters, always with the goal of making NPR’s stories as good (and therefore as accurate) as possible.”

The handbook also says “attribute everything… When in doubt, err on the side of attributing — that is, make it very clear where we’ve gotten our information (or where the organization we give credit to has gotten its information). Every NPR reporter and editor should be able to immediately identify the source of any facts in our stories — and why we consider them credible. And every reader or listener should know where we got our information.”

In her NPR piece and a number of WKU reports, Autry quotes the Bluegrass Institute, which she describes as “a Kentucky-based think tank that advocates for smaller government.”

With just two employees, it doesn’t have much capacity to think.

What Autry neglected to report was that the Bluegrass Institute is an ad agency for Kochian ideas.  It is also part of a network that is funded by corporate interests closely allied with the American Legislative Exchange Council (ALEC), which poses as a nonpartisan advocate for smaller government and more federalism, but is funded by corporations opposed to unions, the Koch Brothers, and their confreres. While the network says its members are independent, behind closed doors it operates like an ideological Ikea selling libertarian ideas, The New Yorker magazine reported.

Editor Lewis told me he had no idea about the Bluegrass Institute’s connections.

Lewis also indicated he was not troubled by using the term “right to work,” which is both factually inaccurate and politically loaded. Based on the evidence I call them right-to-work-for-less laws. NPR surely should explain to listeners that an abundance of official data (and economic theory) show that union workers make more than their non-union counterparts.

Autry ended her NPR piece with another falsehood: “Meanwhile, several labor unions — including some from out of state — have filed a federal lawsuit to stop Kentucky’s local right-to-work movement.”

All of the unions represent workers in the county where the lawsuit was filed, a fact anyone who read the lawsuit should know. Irwin “Buddy” Cutler, the lawyer who filed the case, noted that to have standing – the right to sue – the union would have to represent workers in the county where the dispute exists.

Lewis said he did not know that, which explains his failure to ask what strikes me as an obvious question. Beyond that, what purpose did ending on this (false) point serve?

NPR owes listeners a corrective. It also needs to balance its reports and use relevant data. More importantly, all news organizations need to be wary of “think tanks” bearing easy information.

 

By: David Cay Johnston, The National Memo, March 21, 2015

March 23, 2015 Posted by | Journalism, Media, Right To Work Laws | , , , , , , , , | Leave a comment

“Remember At The Polls”: No One In Wisconsin Asked To Kill Unions Except Special Interests

It was the question no Republican in Wisconsin could answer.

“What beating hearts are asking you to pass right to work legislation?”

Senator Janet Bewley, a Democrat, put the simple query to the other side of the aisle Tuesday night while the chamber debated a “right to work” bill that will effectively kill private sector unions in the state by ending the requirement that workers pay dues for representation.

The answer, of course, is no one. That much was clear at the state capitol. There were no signs asking to join a union shop but not the union; no bullhorns asking to skirt paying dues.

If there was anyone at Monday’s hearing on the bill who asked lawmakers to pass right to work, their names weren’t mentioned by any of the Republicans. In fact, the only Republican to mention someone’s name was Senator Jerry Petrowski.

“I’m a Ronald Reagan Republican, and like President Reagan I was a union member for many years,” he said before becoming the only member of his party to vote against the bill. Nevertheless, it passed 17-15 and sets Wisconsin up to become the 25th right-to-work state.

This death warrant for unions wasn’t drafted in Wisconsin though. The fingerprints of the American Legislative Exchange Council (ALEC), a right-wing special-interest group, were found all over the bill. Nevertheless, Governor Scott Walker is ready to sign it after dealing unions a mortal wound in 2011 by ending the right to collective bargaining for public employees.

“Walker said that it wasn’t time for this, that it would be a distraction,” said Tom Much, a 58-year-old retiree from the Communications Workers of America. Hundreds of union supporters and Much stood outside the Capitol as snow fell Tuesday afternoon, about an hour before debate over the bill began.

What did Walker think the bill was distracting from though?

“You tell me,” Much said.

It could be the state’s $2.2 billion deficit, often cited by Democrats as they futilely filibustered the bill . More than likely, though, it is Walker’s presidential ambitions that right to work would distract from. So, while much of the talk regarding Walker in the past few days and weeks has revolved around his no-comment status when it comes to President Obama’s religious beliefs, and prior to that his punting on the question of evolution, in Wisconsin, the governor’s about face on the law has gone almost unnoticed by national political reporters.

“Now, he says that he will sign it,” Much said, noting Walker’s intent to approve the right to work bill when it reaches his desk, something the governor always insisted was unlikely to happen. “Seems to me to be a bit of a turnaround.”

Not quite. Walker has avoided talk of making Wisconsin a right to work state—until recently—and has let his Republican allies in the legislature perform most of the heavy lifting regarding the bill.

His fellow Republicans didn’t have much to say during Tuesday’s proceedings, instead letting their votes do the talking. Fitzgerald began by introducing the bill, saying it would be a boon to the state’s economy. Almost all other comments from the GOP came in the form of bickering with Democrat Sen. Chris Larson over the previous day’s hearing, which ended abruptly when Republican Sen. Stephen Nass cited a “credible threat” that the proceedings would be disrupted by protesters. Twenty-five minutes before the scheduled end of the hearing, Nass called it quits, fueling anger among some in the crowd who had waited hours for their chance to speak.

“Are we afraid of what the public is going to say?” Larson said Tuesday night in arguing for a failed attempt to push the bill back to committee. “Maybe if we go back there someone will show up who’s not from a right wing think tank to speak for (right to work). I know I was on the edge of my seat waiting for that to happen.”

Larson was likely referring to James Sherk of the Heritage Foundation, who testified in support of the bill on Monday and has been extolling the virtues of right to work for the conservative think tank in op-eds at National Review. Larson noted that, in eight hour’s worth of testimony, more than 1,700 voiced their opposition to right to work, while just 25 expressed support for the bill, including Sherk.

This was the backbone of the Democratic argument against Walker’s policies Tuesday night: they represent special interests, not the people. Walker and his allies would likely reply that groups like ALEC, the Heritage Foundation, and those represented by the Kochs have just as much a right as any to have their voices heard as anyone else, but that they might lack the “beating hearts” that Bewley asked about.

“At issue here is the simple matter of individual freedom,” Fitzgerald argued in introducing the bill.

Who those individuals are—the corporate or manufacturing interests who backed Wisconsin’s right to work bill, or the men outside in hard hats and Carhart jackets who voted for union representation—is up for debate. But it’s a back-and-forth that Walker has so far stayed out of. His job is simply to sign the bill when it reaches his desk.

That will likely happen soon: Republicans have a 63-36 majority in the state assembly, where the bill is headed next week. If it does and right to work becomes law as quickly as everyone anticipates, the distraction to Walker’s increasing presidential hopes will be minimal. But a few people won’t forget what happened Tuesday. Among them, Tom Much. Watching through the snowflakes as his fellow union members had what will likely be their last and loudest stand, Much held a sign, aimed at the Capitol steps.

“Remember at the polls.”

 

By: Justin Glawe, The Daily Beast, February 26, 2015

March 2, 2015 Posted by | Right To Work Laws, Scott Walker, Wisconsin Legislature | , , , , , , , | Leave a comment

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