JANUS V AFSCME: THE UNIONS – DEATH OR TRANSFORMATION?
BLOG -- COMPILATION AND COMMENTARY
BY LUCY WARNER
FEBRUARY 23, 2018


A CRITICAL ANTI-UNION CASE IS COMING UP IN JUST A FEW DAYS. THE NEWS ARTICLE BELOW CONCERNS AN UPCOMING SUPREME COURT CASE -- JANUS V AFSCME – THIS “RIGHT TO WORK” CASE IN THE PUBLIC SECTOR IS THE NEWEST THAT AIMS TO STRIP THE UNIONS OF THEIR EVERY SOURCE OF INCOME, THUS KILLING THEM. THE COURT WILL HEAR THE CASE ON THIS NEXT MONDAY, FEBRUARY 26, 2018. THERE ARE CHANGES IN THE WAY SOME UNIONS ARE ORGANIZING AND DOING BUSINESS, WHICH SHOULD HELP.

IN MY DAYS OF YORE AT UNC-CH I DID TAKE A FASCINATING COURSE ON THE HISTORY OF THE LABOR MOVEMENT IN THE USA. OUR LABOR HISTORY SEEMS TO HAVE BEGUN AS A PITCHED BATTLE FROM PLACE TO PLACE BETWEEN ANGRY BUSINESSES AND EQUALLY ANGRY EMPLOYEES. I REMEMBER THAT, ESPECIALLY, IN THE RAILROADS AND COAL MINING UNIONS. THAT GAVE UNIONS A BAD NAME, EXCEPT WITH THEIR MEMBERSHIP AND LIBERALS. I, BEING A LIBERAL, BELIEVE IN SOME ACCEPTABLE USE OF PRESSURE TO ATTAIN AN ACCEPTABLE GOAL. THAT INCLUDES A STRIKE. IT DOES NOT INCLUDE PHYSICAL ASSAULT OR BOMBINGS. FOR SOME HAIR-RAISING STUFF, GO TO WIKIPEDIA’S ARTICLE ABOUT THE MOLLY MAGUIRES.

NOWADAYS, AS THERE HAVE BEEN A SERIES OF PRO-BUSINESS LAWS PASSED DOWN THROUGH THE YEARS, WHICH EFFECTIVELY PREVENT UNIONS AS THEY ARE NOW STRUCTURED IN MOST CASES FROM SUCCEEDING. THE FOLLOWING WAYS THAT UNIONS ARE ADAPTING OFFER ME SOME HOPE FOR THE WORKING PEOPLE.

SO, WHAT IS A MICRO-UNION? SEE THE ARTICLE BELOW ABOUT “EXCLUSIVE V NON-EXCLUSIVE” UNION AGREEMENTS. THIS IS ONE WAY FOR UNIONS TO ACHIEVE SOME POWER WITHIN AN OTHERWISE CLOSED GROUP. A UNION GROUP MADE UP OF A SMALL GROUP (MICRO-UNION) IS ANOTHER. A UNION WHICH REPRESENTS ONLY THOSE MEMBERS OF AN ORGANIZATION WHO CHOOSE FREELY TO JOIN AND PAY FEES. IF THEY DON’T PAY FEES, THEY AREN’T MEMBERS. IN THAT CASE, THE UNION WILL NOT BE REQUIRED TO AID THEM AS WORKERS, BUT THEY MAY HAVE TO START WORKING IN A DIFFERENT WAY IN ORDER TO GET A SUSTAINABLE INCOME. SEE THE FOLLOWING ARTICLES BELOW.


https://nwlaborpress.org/2018/02/right-to-work-nation-getting-ready-for-janus-v-afscme/
Right-to-work nation? Getting ready for Janus v AFSCME
Feb 14, 2018 National
By Don McIntosh

Less than two weeks from now — Feb. 26 — the U.S. Supreme Court will hear the most significant labor law case in decades.

In Janus v. AFSCME, a lawyer for an anti-union group will argue that requiring union-represented public employees to pay anything at all to the union would be an unconstitutional violation of their First Amendment free speech rights — because that would be like making them pay for political speech they might disagree with.

The Court addressed that same argument over 40 years ago in a 1977 case called Abood v. Detroit Board of Education and came up with a compromise: Union-represented workers who choose not to join the union don’t have to pay union dues, which pay for political expenses like lobbying, but they can, if state law allows it, be required to pay a lesser amount known as “fair share” fees — fees that cover just the union’s costs of negotiating contracts and representing members. Now, plaintiffs in the Janus case want the Court to overturn the Abood decision based on the argument that everything a union does — even grievance handling — is political when the employer is a government.

MAN IN BLACK: It’s no accident the Supreme Court is considering Janus v AFSCME. Unlike other courts, it chooses which cases it wants to hear. In a way, Janus originated in 2012, when Supreme Court Justice Samuel Alito wrote the majority opinion in Knox v. SEIU, a case about refunds for workers who don’t want to pay for union political spending. Alito questioned the constitutionality of the Supreme Court’s 1977 Abood decision, which says it’s okay to require public employees to pay their fair share for union representation. His words tipped off anti-union lawyers that they could challenge Abood. In Harris vs. Quinn in 2014, they challenged fair share payments for home care workers in Illinois, but a 5-4 majority decided only that the workers weren’t true state employees. The next attempt was Friedrichs v California Teachers Association, which sped through the court system but deadlocked 4-4 after Antonin Scalia died in 2016. With Trump appointee Neil Gorsuch confirmed in 2017, a 5-4 conservative majority was restored. Alito may get his wish.

If a majority of the Court agrees, it would result in an immediate financial hit to public sector unions in 23 states, including Oregon, Washington, and California. In effect, the Court would be imposing the so-called “right to work” policy on state and local governments nationwide.


The Janus case began with Bruce Rauner, a private equity fund manager with a net worth estimated at close to a billion dollars. Rauner, a Republican, won the November 2014 election for governor of Illinois. One of his first acts in office was an executive order halting the collection of the fair share fees. In hopes of making that order legal, Rauner also filed suit in federal court arguing that the fair share requirement was unconstitutional. The judge ruled that Rauner had no standing to sue since he personally was not a union-represented worker — but the judge allowed the case to move forward by agreeing to remove Rauner as plaintiff and replacing him with an Illinois child support enforcement specialist named Mark Janus.

As an employee of the Illinois Department of Healthcare and Family Services, Janus is represented by AFSCME Council 31. Janus, who makes $71,000 a year under the union contract, objects to paying $45 a month to the union — because it takes political positions he doesn’t support, including advocating more spending on state programs, and higher taxes to pay for it.

But this isn’t the story of one man’s courageous fight against “compulsory unionism.” Janus is merely a vehicle for a network of anti-union legal nonprofits that have been working to give a 5-4 conservative Court majority a chance to deal a body blow to their hated political adversary: the labor movement.

Since the Supreme Court agreed last July to hear the Janus case, hundreds of organizations and prominent individuals have filed or signed onto 75 “amicus briefs” in the case. The briefs give a preview of the arguments the Court is likely to hear.

As the Internet has repeatedly shown, individuals who get something for free cannot be counted on to voluntarily pay for it.”—American Civil Liberties Union

The National Right to Work Legal Defense Foundation will argue that the case is about free speech. But if Janus were about free speech, you’d expect the nation’s foremost defender of free speech to support it. Not so: The American Civil Liberties Union (ACLU) argued in an amicus brief that employee free speech is already protected under Abood because nonmembers don’t have to pay any union expenses for political speech. To rule that they can’t be obliged to pay for representation either would trample on another First Amendment right — freedom of association — because it would force union members to pay for nonmember services, the ACLU said: “Even employees who favor the union’s positions or any benefits it conveys will have every incentive to shift the costs of their representation to members, as they will be able reap the same benefits without spending a dime. As the Internet has repeatedly shown, individuals who get something for free cannot be counted on to voluntarily pay for it.” In other words, Janus isn’t about free speech; it’s about free riders.

Land of the free riders?

Imagine. You pull up to the gas pump, and get a choice: pay the sticker price, or skip out on paying the gas taxes and receive a 49 cent per gallon discount. And if you choose not to pay the gas taxes, you can still drive on the roads paid for by the taxes that other drivers paid. Economists call this the “free rider” problem, and it’s at the core of the Janus case, because under the American system of labor law, democratically elected unions serve as workers’ “exclusive representatives,” and they have a legally binding duty to represent all workers in a bargaining unit, whether or not those workers choose to join the union.

Anti-union lawyers in the Janus case have argued that one way around the free rider problem would be to eliminate exclusive representation, and let dissenters fend for themselves. But exclusive representation has been a distinctive feature of American labor law since the 1926 Railway Labor Act, and it’s hard to see how it would be practical for state and local government employers to bargain separately with rival unions in a single workplace, or negotiate terms and conditions with tens of thousands of individual employees.

Some other key arguments against overturning Abood:

Stare decisis Stare decisis is Latin for “stand by things decided.” It’s a hugely important legal principle — the doctrine of precedent. If the court reverses its Abood decision, it invalidates 41 years of lower court decisions that relied on the Abood precedent, and it overturns laws in 23 states, affecting thousands of union contracts that cover millions of public employees.

Federalism Federal law is silent on whether state and local public employees have any collective-bargaining rights at all; it leaves states to make that decision themselves. That’s consistent with the Tenth Amendment to the U.S. Constitution, which says that the powers not delegated to the federal government by the Constitution are reserved to the states. Today, 41 states give public employees at least some collective bargaining rights, and 23 plus Washington DC have a fair share requirement.

Consistency with other free speech rulings The Supreme Court has long balanced the individual free speech rights of public employees against the prerogatives of public employers to run the workplace, and has given states wide latitude when they impose restrictions as an employer. The Court has held that government employers can search employees’ desks without a warrant, question them about their backgrounds, require them to cut their hair, even bar them from participating in political campaigns after hours.

Money isn’t speech “This is not compelled speech. It’s a compelled payment of money.” That’s what a pair of prominent conservative legal scholars argued in one amicus brief. Seems obvious enough.

Follow the money

DEJA VU? Union protesters from National Nurses United gathered outside the U.S. Supreme Court Jan. 11, 2016, the day oral arguments were heard in Friedrichs v. California Teachers Association, a case almost identical to Janus. Unions got a reprieve when the court deadlocked 4-4 after the death of Antonin Scalia. Now union foes get a second bite at the apple with the same issue going back to the Supreme Court. (Photo by Rick Reinhard, courtesy of the National Nurses Union)

Janus needs to be understood in a much larger context. When public employee unions began to win the legal right to engage in collective bargaining, union members were 40 percent of the private sector workforce, and private sector workers had greater pay and benefits than public sector workers. That was 50 years ago. Since then, public sector unions grew until they represented about 40 percent of the public sector workforce, and public sector workers caught up in wages and benefits. But during that same period, deregulation, offshoring, outsourcing and aggressive union-busting by employers reduced unions to 6 percent of the private sector workforce. Today, the public sector is in some ways the last stronghold of real union power: Maybe not enough power to call the shots, but enough to hang on a bit longer to the wages, benefits and job security that used to be the the standard — set by private sector unions — for every American worker. With the labor movement in overall decline, unions have turned increasingly to the public to try to win gains for workers through politics.

That’s why the list (below) of who’s filing all the anti-union amicus briefs is so telling: It’s a “who’s who” of think tanks and anti-union nonprofits funded by a network of politically-active right-wing billionaires led by the Koch brothers. The same groups contributed to the corporate-tax-cutting Republican takeover of Wisconsin, Michigan, and other states. They’ve engineered this moment — not because they care about the rights of union dissenters — but because they’re determined to remove unions as obstacle to imposing a radical corporate ideology.

After hearing oral arguments from lawyers representing both sides on Feb. 26, the Supreme Court is expected to make a decision in the Janus case before its June recess.

Taking sides
As the labor movement gets ready for its “day in court,” it’s backed by 39 amicus briefs from church groups and a broad cross-section of civil society groups, all asking the Court to reject Janus. Meanwhile, all but two of the 36 anti-union amicus briefs come from the same mostly-obscure network of anti-union think tanks and legal foundations funded by the Koch brothers and their ilk. [You can see all the briefs here.]

Pro-union amicus briefs

State attorneys general: Alaska, California, Connecticut, Delaware, Hawaii, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia

Mayors: Los Angeles, Seattle, Chicago, New York, Philadelphia

Faith groups: United States Conference of Catholic Bishops, National Council of the Churches of Christ in the USA, Union for Reform Judaism, and dozens of others

Civil society groups: American Civil Liberties Union, National Organization for Women, Southern Poverty Law Center, National Urban League, American-Arab Anti-Discrimination Committee, Natural Resources Defense Council, Sierra Club, YWCA USA, Dēmos, Public Citizen, NARAL, Center for Reproductive Rights, Human Rights Campaign, Lambda Legal Defense Fund, National Center for Lesbian Rights, National LGBTQ Task Force, PFLAG, National Center for Transgender Equality, Union of Concerned Scientists, United Students Against Sweatshops, Jobs With Justice

Anti-union amicus briefs

Trump Administration’s solicitor general

State attorneys general: Michigan, Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Missouri, Nebraska, Nevada, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin.

Civil society group: National Federation of Independent Business

Anti-union think tanks and legal foundations: 1851 Center for Constitutional Law, American Center for Law & Justice, Atlantic Legal Foundation, Becket Fund for Religious Liberty, Buckeye Institute for Public Policy Solutions, Cato Institute, Center for Constitutional Jurisprudence, Center on National Labor Policy, Competitive Enterprise Institute, Empire Center for Public Policy, Fairness Center, Freedom Foundation, Goldwater Institute, James Madison Center for Free Speech, James Madison Institute, Landmark Legal Foundation, Mackinac Center for Public Policy, Pacific Legal Foundation, Pioneer Institute, Rutherford Institute, Southeastern Legal Foundation


READER COMMENT ON RIGHT-TO-WORK NATION? GETTING READY FOR JANUS V AFSCME
Tim Nesbitt FEB 14, 2018 AT 12:37 PM

Don, this is an excellent overview. Very clear on both the legal issues and the political forces involved. Thank you.

I do think it is worth exploring in more detail how the practice of exclusive representation is tied up with the fair share financing issue. This is a point of attack in one of the anti-union initiatives filed for the 2018 Oregon ballot. But given the practice in many European countries where there are multiple unions for the same occupations within employers and industries, it is worth examining how that works and how, in an era when workers are more mobile and union power is more focused on government to enact and protect standards for workers here in the US, a more political union movement might build strength in a non-exclusive rep model.


EXCLUSIVE V NON-EXCLUSIVE UNIONS

https://www.mackinac.org/20702
MACKINAC.ORG CENTER FOR PUBLIC POLICY

STUDY

Exclusive vs. Focused*: Members-only Agreements
By F. Vincent Vernuccio, published on Nov. 11, 2014

Many labor experts, from both ends of the political spectrum, are increasingly talking about a concept called “members-only agreements.” Members-only agreements are contracts in which unions only represent the actual members of the union, as opposed to representing all employees within a bargaining unit, as is typical. Workers who do not wish to be members of the union are not forced to be represented by the union, and likewise, unions are not forced to provide these employees with any services.

Members-only agreements appear legal under the current NLRA and NLRB rulings. In a review of a book by Charles J. Morris, a leading scholar advocating for members-only agreements, John M. True III, a superior court judge in Alameda County, Calif., wrote:

Nothing in the actual language of the NLRA, in its legislative history, in NLRB or court cases, in the constitution, in international law, or indeed in common sense or sound policy suggests that unions could not still use this "members only" bargaining approach. It is just that we have all forgotten about it.[9] [emphasis in original]

James Sherk, senior policy analyst in labor economics at the Heritage Foundation, agrees:

Federal law does not obligate unions to represent non-members. The National Labor Relations Act allows unions to sign “members’ only” contracts that apply only to dues-paying members. This is legally uncontroversial. In 1938, the Supreme Court expressly upheld union’s ability to negotiate only on behalf of members.[10]

William Gould, a President Clinton appointee to chair the National Labor Relations Board, also agreed, writing, “the law now permits ‘members-only’ bargaining for employees without regard to majority rule or an appropriate unit and without regard to exclusivity.”[11]

Still, members-only agreements are not mainstream, and as of yet, still amorphous. In part, this is due to unions holding on too tightly to their exclusive representation privileges.

Some unions are using a new concept known as “micro-unions” to form smaller, but still monopolistic union arraignments. Unlike members-only agreements, micro-unions allow unions to gain exclusive representation privileges over a minority of the workers in a unit.

Currently, a union must organize a majority of all employees at a workplace in order to be recognized by the employer as the exclusive representation of the workers. Under the micro-union concept, a union could try to organize just a small subgroup of workers (three of the five employees at a grocery store’s deli counter, for example) and win exclusive representation for that subgroup. The employer would then be compelled to negotiate with the union in good faith and all the employees in the subgroup would be forced to accept the union’s representation and contract.

Unions could use these micro-unions as just a stepping stone toward the ultimate goal of exclusively representing the entire workplace. These types of arrangements do not provide the same type of choice and accountability built in to members-only agreements.

A recent ruling by the Sixth Circuit Court of Appeals upheld an NLRB decision to allow for hyper-specific definitions of bargaining units in nursing homes. The Specialty Healthcare and Rehabilitation Center of Mobile ruling defined which workers could be included in a nursing home bargaining unit. The Sixth Circuit wrote of this authority, “Federal labor law gives the Board wide discretion to delineate the ‘bargaining unit,’ the term for the group of workers that will vote on union representation.”[*] This may give the NLRB the ability to redefine the size of other units in other industries.

Indeed, the NLRB recently used the Specialty Healthcare decision to justify allowing 41 cosmetics and fragrances employees in a Macy’s department store in Saugus, Mass. to petition to form a micro-union. The store employs 150 employees, 120 of whom are “selling” employees (sales people in similar positions to the cosmetics and fragrances employees).[†]

The decision allows the small group of cosmetics and fragrance employees to petition for an election. Even if every cosmetics and fragrances employee votes to unionize, it will only be 33 percent of all the selling employees in the store and 27 percent of all the employees in the store. If the union is formed by a slim margin in the election, 21 to 20, this will mean that only 17.5 percent of the selling employees and 14 percent of all employees voted for the union.

After the Specialty Healthcare ruling by the Sixth Circuit, Michael Lotito, a labor attorney in San Francisco, told the Wall Street Journal, “The [NLRB] is very well-positioned to give unions an enormous organizing advantage by determining these small units.”[12] The Journal continued:

By organizing a small group of workers, a union can gain a foothold among a company’s workforce, as well as access to company information during contract negotiations that can give it leverage and make subsequent organizing campaigns easier, Mr. Lotito said. “It lets the union get their nose under the tent.”[13]

The use and growing acceptance by the current NLRB of micro-unions demonstrates that changing the standard practice of unions to one that relies on members-only agreements may be difficult. Without forcing any employees or employers to join or recognize the union, members-only unions will only represent workers who want to be represented by that union. This should create stronger unions, where all the members of the union are there by choice, and unions have an incentive to provide valuable services to each worker. They are free from forcing workers to pay for or accept unwanted representation and they are also free from representing employees who do not want these services.

[*] Specialty Healthcare and Rehab. Ctr. Of Mobile, 357 NLRB No. 83 (2011), see also 356 NLRB No. 56 (2010).

[†] Macy’s, Inc. and Local 1445, United Food and Commercial Workers Union, 361 NLRB No. 4 (2014).

SKU: s2014-07


“EXCLUSIVE V FOCUSED”* UNIONS

I AM UNABLE TO FIND THE TERM FOCUSED USED AS IT APPEARS TO ME TO MEAN IN THIS REFERENCE. I DID FIND THE TERM “MACRO-FOCUSED” OR SIMPLY “MACRO” IN SOME ARTICLES, AND SOME WHICH DO USE THE WORD “MACRO-UNION.” THOSE UNIONS SEEM TO BE FOCUSED ON THE OVERALL GOVERNMENT ECONOMY RATHER THAN THE GOAL OF RAISING WORKER PAY SCALES. IF ANYTHING, IT’S GOAL SEEMS TO BE TO PREVENT PAY RAISES IN AN EFFORT TO AVOID JOB LOSS. LIKELY GOVERNMENT UNIONS IN THE US DO THAT, IN THAT THEY PROTECT WORKERS FROM ABRUPT DISMISSALS WITHOUT CAUSE, ETC. THE BENEFIT IS A PRESUMED HIGHER WORKER RETENTION RATE. THE PAPER I WAS READING IS BY ALL CHINESE WRITERS AND SEEMS TO BE IN A CHINESE BUSINESS SETTING ALSO. IN OTHER WORDS, THE UNION PROBABLY DOES VERY LITTLE GOOD WHERE THERE IS A NEED TO MAKE AN APPRECIABLE IMPROVEMENT IN WORKER PAY OR CONDITIONS. IT’S THE OLD “THE HIGHER TIDE RAISES ALL BOATS,” OR “TRICKLE-DOWN.” IN OTHER WORDS, THIS IS WHAT WE ARE OFFERING. DO YOU WANT IT? RIGHT!

SOME COMPANIES IN THE USA DO HAVE “COMPANY UNIONS” – OR DID IN THE 1970S AND 80S WHEN I WAS WORKING -- WHICH HAVE HOPEFULLY A GENUINELY BENEFICIAL SYMBIOTIC RELATIONSHIP BETWEEN THE BUSINESS AND THE WORKERS. I WONDER, THOUGH. WHEN I WORKED AT THE NATIONAL BANK OF WASHINGTON IN DC, THAT WAS A UNION SHOP, MAINLY BECAUSE THE UNITED MINE WORKERS UNION WERE AT LEAST PART OWNERS OF THE BANK. I THINK THE SAME THING HAPPENS IN GOVERNMENT UNIONS; AND HOPEFULLY THERE ARE OTHER CASES. IT’S CERTAINLY TRUE THAT FEDERAL GOVERNMENT WORKERS ARE LESS LIKELY TO BE BOOTED OUT UNCEREMONIOUSLY THAN IN PRIVATE BUSINESS. FOR A MORE SPECIFIC AND INTERESTING DISCUSSION, THOUGH, SEE THIS YANG-TANG.NET REPORT BELOW.

GO TO THIS PDF ON A WORKING DESCRIPTION OF “MACRO-FOCUSED UNIONS.” THERE IS NO REFERENCE ON THE NET FOR THE TERM “FOCUSED UNION,” SO THAT MUST BE AN ERROR ON THE PART OF THE WRITER.

http://www.yang-tang.net/uploads/6/9/4/4/69446089/paper_1215.pdf,
Cost-Benefit Analysis of Union Membership without
Collective Bargaining Benefits

Soon Beng Chew
Nanyang Technological University
Yang Tang
Nanyang Technological University
December 31, 2015
Chapter 2 is titled “Macro-Focused Labor Unions.” This chapter also uses the term “macro labor union.”

“.... At the other end of the spectrum, Chew and Chew (2010) moot the idea that labor unions can promote employment stability by working with the government to enhance a country’s competitiveness. This type of union is macro-focused, and sets wages at levels that maximize employment. With unions that are macro-focused, the standard of living will rise as wages rise in tandem with the prosperity of the country. Chew and Chew (2011)”



THERE ARE SOME WORKERS UNIONS FOR SPECIALIZED FIELDS WHO HAVE A GREATER MARKET AVAILABLE TO THEM BASED ON THEIR SKILLS ALONE – TEACHERS, NURSES, MACHINISTS, ETC. I WOULD LIKE TO SEE MORE OF THOSE. FOR SOME HOPE FOR OUR UNIONS, SEE THIS SERIES OF SHORT PIECES:

https://www.mackinac.org/s2014-07
STUDY
Unionization for the 21st Century: Solutions for the Ailing Labor Movement
By F. Vincent Vernuccio, published on Nov. 11, 2014

For years union membership has been in decline. In 2012 union membership hit the lowest percentage of the American workforce since 1916. The union business model, based largely on industrial organizing efforts from the 1930s, does not appear to carry over well for today’s educated and transient workforce. This study outlines several ideas that unions could embrace that would grow their membership and improve the services workers receive.


Unionization for the 21st Century: What It Is and What It Is Not
https://www.mackinac.org/20700
By F. Vincent Vernuccio, published on Nov. 11, 2014

A new model for union representation is needed if unions are to stem the tide of declining membership. But the interests of individual workers should be at the front of the discussion of saving the labor movement. Labor reforms must be centered on the protection and advancement of workers as individuals.

The current industrial era, one-size–fits-all bargaining model is almost a century old. It leaves little room for cooperation and does not incentivize productivity or reward the best and brightest union members through things like merit pay.

Some labor scholars are recognizing this need and calling for a new form of unionism. Benjamin Sachs of Harvard Law School (and former assistant general counsel for the Service Employees International Union) and Catherine Fisk of the University of California-Irvine School of Law (and member of the SEIU Ethics Review Board) recently wrote in the Los Angeles Times:

Requiring unions to offer free representation to workers who do not want a union in the first place makes no sense. Nor does it make sense to have a system in which workers can benefit from union representation without paying their fair share.

So, to alleviate this double bind that courts would impose on unions and workers, we propose a simple reform: Unions should not be required to represent workers who do not want, and who decline to pay for, such representation.[4]

In order to revive the labor movement, unions need to go back to their original mission of representation in the workplace, but now the diverse needs of each individual worker must be at the center of that effort. This is no small task — unions will need to tailor their services to each individual worker, making his or her achievement paramount, and possibly even provide workers with a selection of choices — an a la carte model.

SKU: s2014-07