It’s been a very good week for American labor, and such weeks don’t come along often. On Monday, the Supreme Court delivered a four-to-four split decision in the Friedrichs case, which would have decimated public-sector unions had the Court been able to produce a fifth vote for the plaintiffs. The saved-from-the-hangman’s-noose decision merely confirmed what everyone knew when Associate Justice Antonin Scalia died earlier this month: that the court no longer has a union-busting majority and isn’t likely to get one unless Barack Obama is succeeded by a Republican president.
Also on Monday, California Governor Jerry Brown announced he had reached a deal with the leaders of the state Assembly and Senate, and with labor leaders, that would raise the state’s minimum wage, currently $10, to $15 by 2022 (or 2023 for businesses with fewer than 25 employees). If ratified by the legislature (where centrist Democrats in the Assembly may seek to weaken the proposal somewhat), California would become the first state to mandate so high a minimum. And size matters: California is home to one of every eight Americans, and the proposed raise would affect fully six million California workers.
And yet, both these notable victories underscore the limits on what unions can achieve in the current political economy. The victory at the Court was entirely defensive—swatting down what could have been a decision that would cause public-sector unions to lose hundreds of thousands of members. Should a Trump or a Cruz or a Ryan become the next president, and be able to appoint Scalia’s replacement, the next iteration of Friedrichs would surely become law. And even if Merrick Garland or future Democratic appointees shift the court towards a more pro-worker stance, that won’t stop Republican-controlled states from enacting the kind of right-to-work and anti-public-worker legislation that’s been adopted in recent years in Wisconsin, Michigan, Indiana, and West Virginia.
The California victory was truly epochal—but there, too, it was emblematic of both what unions can and can’t do. When the Service Employees International Union and New Yorkers for Community Change first conceived the Fight for $15, its goal was to unionize the fast-food industry generally and McDonald’s in particular. What SEIU has come to realize is that its ability to win minimum wage hikes from city councils, state legislatures, or at the ballot box—that is, its ability to win in the political arena—vastly exceeded its ability to win new members in the workplace. For the past quarter-century, the more adept unions have upped their political game, and none more so than SEIU. But during that time, the legal impediments to organizing workers have only grown more daunting no matter how adept a union may be. SEIU has led strategically smart and successful battles for minimum wage hikes in Seattle, San Francisco, Los Angeles, this week California, and soon, perhaps, New York, among other cities and states, but it still appears to be nowhere close to unionizing McDonald’s.
Ironically, the prospect that an anti-union ruling in Friedrichs might greatly reduce their memberships led SEIU and the three other mega-public-employee unions—the American Federation of State, County and Municipal Employees (AFSCME); the American Federation of Teachers (AFT); and the National Education Association (NEA)—to substantially improve their capacity for both political and union organizing. Had Scalia not died, the court, in ruling for the Friedrichs plaintiffs, would have overturned a 40-year-old decision, Abood v Michigan, that allowed public-sector unions to collect payments—called “agency fees”—for workers they represent in collective bargaining and in on-the-job grievance procedures, but who nonetheless choose not to join the union.
Such workers, the Court had ruled in 1967, did not have to pay that portion of dues payments that funded their unions’ political activities, but they did have to pay for that portion that covered the unions’ representation of their interests in bargaining contracts and dealing with management. If the Court ruled for the Friedrichs plaintiffs, the unions would still have to represent and service such workers, but those workers would no longer have to pay the union for those efforts. That would constitute a major hit to the unions’ treasuries and, ultimately, viability—a hit that would only grow worse if dues-paying members also elected to get the union’s services without paying for them.
In June of 2014, Associate Justice Samuel Alito, confident that he had a five-vote anti-union majority, authored an opinion that all but invited anti-union organizations to challenge Abood. Friedrichs was that challenge, and ever since the Court decided last summer that it would hear the case, the major public-sector unions, fearing the worse, have gone into overdrive to sign up their agency fee-payers. Since then, the SEIU (a 1.8-million-member union that is evenly split between public- and private-sector employees) has signed up 78,000 such fee-payers. AFSCME, a union of more than 1.5 million members, virtually all of them in the public sector, has signed up nearly 200,000 new members in the past two years. The AFT, which claims 1.6 million members, was in a relatively secure position among the K-12 teachers it represented, 96 percent of whom were union members. In colleges and universities, however, particularly among adjunct faculty and graduate student staffers, the rate of membership was lower—roughly 80 percent. Accordingly, the AFT has focused its sign-up efforts on college and university campuses.
In reaching out to their fee-payers and members, the unions did what unions need to do on a consistent basis, but usually don’t. They trained their staffers and their stewards, and recruited and trained their members, to reach out to fee-payers and inactive members; to talk to them one-on-one about their concerns, their priorities, and what the union was doing and could do both on their behalf and on behalf of worker and societal interests more generally. At AFSCME, which trained more than 10,000 members to conduct such discussions and be more active in union community and political programs, discussions with the agency fee-payers weren’t perfunctory: On average, they lasted between 15 and 30 minutes. The AFT set a goal of having at least one such discussion with every one of its members and fee-payers over the next two years. The SEIU found that fee-payers responded most positively not to what the union has accomplished through collective bargaining, but rather, to their campaigns to raise minimum wages for all low-wage workers and to establish workers’ rights to paid sick days.
In a sense, the unions were reinventing the wheel. That one-on-one conversations with members and fee-payers are the most effective way to communicate with them, rouse their interest, win their support, and engender their involvement has been known for decades—but it usually takes some kind of crisis for unions to commit to such programs. The problem is that mobilizing the number of members required to make these programs work is very difficult in non-crisis times, for the simple reason that union members tend to be normal human beings leading normal, busy lives. Absent a fire bell in the night, they’re not likely to drop everything to address a problem. Friedrichs was a fire bell. Whether the unions are able to maintain the kind of involvement they’ve mustered now that Friedrichs is no more remains to be seen—though the prospect of a Trump or Cruz presidency may swell the ranks of their precinct-walkers come fall.
As for the minimum wage victory in California, SEIU has every reason to take a bow. What brought Brown to the table was the prospect of an SEIU-backed initiative on the November ballot that would have raised the state’s minimum wage to $15 more quickly than the compromise deal he worked out, and with none of the codicils he negotiated that allow the governor to slow implementation if the economy goes into recession. (Actually, in classic SEIU fashion, there were two such ballot measures, from rival forces within the union, one of which qualified for the ballot last week.)
SEIU’s decision to devote tens of millions of dollars to its nationwide Fight for $15 campaign over the past several years marked a strategic departure for American labor. Unions seldom invest that level of resources into campaigns that don’t promise to bring in dues-paying members who will ultimately cover the cost of that investment. Of all the major unions, SEIU has been known for its patience—for its willingness to invest in multi-year campaigns, such as the one it has waged, with considerable success, to unionize the janitors who clean the nation’s downtown office buildings. But while SEIU went into the Fight for $15 with the belief that it could at some point unionize McDonald’s, it was also prompted by the belief of its president, Mary Kay Henry, that unions have to do something considerably bigger than conventional organizing to arrest the declining fortunes of American workers. As the Fight for $15 stretched out over several years, and the SEIU invested more resources into it, something considerably bigger—legislated wage hikes, sick day legislation and the like—began to emerge. Indeed, Monday’s announcement in California may constitute the biggest win for low-wage American workers in many years.
Critics have complained that $15 may be too high and may cost some workers their jobs. (Of course, these critics don’t complain that technological innovations cost workers jobs, just that providing decent living standards to workers may cost some jobs.) But at this period in the life of the American political economy, when the balance of power between workers and employers, between—if I make invoke some archaic terminology—labor and capital, is such that workers have no power to claim a greater portion of the value of their work in the workplace, but still have the power to claim it through the political process, a sizable hike to the minimum wage is best viewed as the only possible functional equivalent—however partial, however inadequate—to having a union. Forty years of a right-wing business offensive has rendered private-sector unionization all but impossible, but legislative wage boosts remain possible still, where unions have the power to help elect progressive public officials.
But they’re not possible unless the SEIUs of this world—and there are all too few such institutions—retain enough power to affect political outcomes. Had the Court ruled for Friedrichs, the power of those unions might have declined to a level where even minimum-wage hikes become a thing of the past. Given all that, at the Court, in California, this has been a very good week for workers indeed.