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If SCOTUS whacks the unions, there needs to be a plan B

If the Supreme Court rules against public sector unions, their supporters must find new ways to promote collective bargaining.

The Supreme Court. REUTERS/Joshua Roberts/Files

The Supreme Court heard arguments in Friedrichs v. California Teachers Association on Monday. While the plaintiffs framed their argument in free speech terms, the lawsuit’s anti-union backers clearly view the case as an opportunity to further weaken union bargaining clout. We’re not SCOTUS watchers, but members of this court have been unsympathetic to unions in the past. There’s a good chance the plaintiffs will win.

Supreme Court majority is critical of compelled public employee union fees

If Friedrichs succeeds, unions will no longer be able to require contributions from individuals who benefit from the improved compensation and working conditions they negotiate. And if that happens, it’s not just unions that will lose. It’s also non-union workers, as we expect negative “spillover” effects to go well beyond the teachers and other public sector workers directly affected by the lawsuit. Add in the general decline in union membership in recent years and the policy lesson is glaringly clear: While doing all we can to protect the bargaining power that still exists, those of us who believe in promoting broadly shared prosperity must explore and develop new ways to bolster collective bargaining.

First, consider the stakes of Friedrichs. Public sector unions in 25 states would be directly affected (25 states are already “Right to work”… for less). As Freeman et al. recently documented, there is a 32 percentage point difference in public sector union density between states that do and don’t allow agency fees (dues non-union members pay to support union bargaining on their behalf); Friedrichs’s empowerment of free riders would mean that “unions have less money to service the same number of members [and] that the union presence and contribution to worker welfare [would] manifestly shrink.”

Low- and middle-income Americans would suffer the consequences, which is why civil rights groups oppose the lawsuit (note also that the organization behind Friedrichs has spent the last 20 years fighting against affirmative action, the voting rights act, and various other initiatives that help disadvantaged groups of people). Unionized public sector workers on average make 8 percent more than their non-union counterparts. And, as noted, since unions historically create higher wages and better workplace norms in places where they’re active, there are negative spillover effects to everyone else when they disappear. Wages on the whole are depressed by about 3 percent in Right to Work states, even after controlling for prices, demographics, and labor market characteristics. In addition, women and black workers in particular benefit from unions, which cut the gender wage gap in the public sector by half and provide a wage premium that is about 1.4 times higher for black workers than for non-black workers.

Diminished bargaining power is at the heart of the deep-seated inequalities that have beset our economy for decades. An unfavorable decision in Friedrichs would seriously exacerbate that fundamental problem. It is therefore imperative that we both fight for what we still have and continue to develop supplemental forms of collective bargaining:

— Unions must continue their recent organizing efforts. Organized labor has known for quite some time that they’d be facing legal challenges in front of a hostile Supreme Court. They’ve already begun to prepare for an adverse ruling. That preparation involves getting back to old-fashioned one-on-one member outreach, identifying issues, like the Fight For $15, that workers can rally around, and showing workers the tangible benefits of union membership. The development of an online platform for virtual labor organizing would be a useful next step that could help workers coordinate large-scale campaigns, learn about the law, and sidestep common union-busting tactics from employers. It will be an uphill climb, but unions may be able to stave off some membership loss and reduce free riding if they’re able to execute these efforts effectively.

— Union supporters must strengthen the National Labor Relations Board and fight for better laws. As we’ve noted before, the NLRB can be an important bulwark against anti-union tactics. Last year, for example, the NLRB issued an important decision that made large corporations (like McDonald’s) jointly responsible for employment issues at their franchisees. Republicans tried to sneak a budget rider that would prevent this ruling from taking effect into end-of-year negotiations, but Democrats were successful in keeping the provision out of the deal, and it looks like few obstacles remain between it and enactment.

Lawmakers must also push for new measures that level the playing field for workers who wish to join unions and collectively bargain. A 2014 paper from Richard Kirsch at the Roosevelt Institute lays out numerous possibilities, which include providing union representatives with more opportunities to talk to employees, giving unions more flexibility over how they “define the boundaries of bargaining units” and holding large employers (like Walmart) accountable for labor practices along their production line. These and other measures could restore some of the bargaining power that workers might lose if Friedrichs goes the wrong way.

— We must recognize that the attack on organized labor is part of a larger class struggle, and that vigorous democratic engagement is required to win it. As Harold Meyerson argues over at The American Prospect, the Supreme Court justices’ open animus to public sector collective bargaining reflects a political landscape that has changed significantly over the past 35 years. Diminished union strength is both a product of a successful legislative assault on organized labor and a driver of our judiciary’s increasing willingness to perpetuate it.

Friedrichs could still be a major blow. But the long history of unions in America teaches us that special interests’ “divide and conquer” of the working class must be met with new coalitions that organize to rebuild lost bargaining power. Whatever the outcome of Friedrichs, that is what must happen next.