Editor’s Note: Julius Getman is a labor law scholar, an emeritus professor at the University of Texas at Austin, and author of the forthcoming book, “The Supreme Court on Unions: Why Labor Law is Failing American Workers.” The views expressed are his own.
The Supreme Court said Tuesday it was evenly divided in a case concerning public sector unions
Julius Getman: Anti-union bias of the Supreme Court is not set in stone
The anger of working-class whites is generally seen as having fueled the rise of Donald Trump’s presidential candidacy. But what has been largely overlooked is the relationship between white working-class anger, racial animosity, and the demise of unions.
When unions were powerful, collective bargaining produced high wages, regular wage increases, and decent working conditions for millions of workers. Union members were an important element of society, and their political education programs were able to act as a barrier to demagogues spouting divisive populist rhetoric. For instance, unions helped to reduce the appeal of former Alabama governor and presidential candidate George Wallace and his pro-segregationist, anti-establishment messages in 1968, by pointing out the sorry plight of workers in Alabama.
And the achievements of collective bargaining also indirectly benefited non-union employees because their employers were motivated to set wages at nearly comparable rates to avoid unionization. True, unionization was not a total panacea for racial animosity. But it gave white and black workers a common stake in the collective bargaining process. In addition, workers who walk a picket line together for any length of time almost invariably come to see each other as brothers and sisters rather than as rivals for employer benefits.
Yet the demise of collective bargaining has meant decades of stagnant wages and take-it-or-leave-it employment conditions for workers, who have come to believe they are invisible to those with political or economic power. And as Ralph Ellison pointed out many years ago, feeling invisible inevitably leads to anger.
So, what happened?
Many factors have played a role in the demise of unions, but the anti-union holdings of the Supreme Court have been among the most significant. The current court’s harmful decisions have been issued despite the fact that since passage of the National Labor Relations Act (NLRA) in 1935, the official policy of the United States has favored “encouraging the practice and procedure of collective bargaining.” As the framers of the act realized, for collective bargaining to flourish, workers must be able to exercise three basic rights: the right to join unions, to bargain collectively, and to strike. Each of these basic rights of workers has been significantly undercut by Supreme Court decisions.
The right to organize, for example, has been rendered ineffective by subordinating it to employer property rights. Because of Supreme Court decisions, employers faced with an organizing effort are able to require workers to attend captive audience meetings in which company speakers demean the value and extol the dangers to workers of voting union in National Labor Relations Board (NLRB) representation elections. Unions are not entitled to enter company premises – even the parking lot – to respond. The result is a massive advantage for employers in NLRB representation elections. That advantage helps to explain why – although studies have shown that most employees would like to be unionized – less than 10% are.
The law states that an employer must bargain in good faith with a union selected by its employees. But employers often come to the bargaining table with the goal of not reaching an agreement. If they are successful in this effort, the union is likely to fade away. Bargaining with the goal of forestalling agreement is unlawful, but the Supreme Court has rejected the remedy of requiring employers to accept reasonable customary contract provisions. As a result, what is called “surface bargaining” is quite common and a large number of unions that win NLRB representation elections do not achieve acceptable contracts.
The only available means for unions to force agreement from an unwilling employer is the strike. The right to strike is essential to collective bargaining, but the right to strike has also been substantially undercut by the high court.
Soon after the NLRA was enacted, the court declared that employers could respond to a strike by hiring permanent replacements to take the jobs of strikers. As a result, in the vast majority of collective bargaining strikes, the union’s striking members are risking their jobs. The Supreme Court has regularly reaffirmed this conclusion without examining either the need for it or how it can be reconciled with the oft-stated policy of insulating workers’ job rights from union activity. And the current court has undercut the ability of unions to collect dues from the employees whose interests they are required to advance.
But the anti-union bias of the Supreme Court is not set in stone.
At least four members of the court recognize that unions and collective bargaining have made a positive contribution to the economic well-being and the social cohesiveness of workers. As a result of the death of Justice Antonin Scalia, the court is currently evenly divided on the role of unions, which gives temporary power to the Courts of Appeals in labor cases.
How? Before cases are heard by the Supreme Court, they are almost always passed on by one of the Courts of Appeals. If the Supreme Court splits four to four, the opinion of the Court of Appeals governs. Thus, the decision by the Ninth Circuit upholding the right of public employee unions to assess a “fair share” of union dues to non-members, on whose behalf the union bargains, was upheld this week by an equally divided court.
This result was a major victory for unions, whose leaders feared, with good reason, that the court led by Justices Scalia and Alito was about to overrule prior precedent, and hold that such “fair share” arrangements violated the First Amendment. (Organized labor was fortunate that the decision being reviewed came from the relatively liberal Ninth Circuit. Had the issue been passed on by the Fifth Circuit, an opposite result would have likely been before the high court and affirmed by the same four to four vote).
Of course, the current uneasy arrangement cannot survive for long. The make-up of the Supreme Court will inevitably change, and the next president is likely to be in a position to appoint justices who will determine whether the court changes course to support collective bargaining and basic worker rights, or whether it continues to deny workers the rights once granted them by statute.
This week’s decision was another reminder that for labor, as for many other Americans, the stakes for the 2016 presidential election are huge.