The Labor Prospect: What Scalia’s Death Means for Unions

AP Photo/Jacquelyn Martin

Rosalind LaRocque of Upper Marlboro, Maryland, and who is a member of the American Teachers Union and is pro agency fees, rallies outside of the Supreme Court in Washington, Monday, January 11, 2016, as the court heard arguments in the Friedrichs v. California Teachers Association case.

Welcome to The American Prospect’s weekly roundup highlighting the best reporting and latest developments in the labor movement. 

(Compiled by Justin Miller—Edited by Harold Meyerson

Friedrichs’s Abrupt Collapse—and Beyond

It’s nearly impossible to overstate what conservative Supreme Court Justice Antonin Scalia’s death over the weekend means for the labor movement. The loss of a conservative majority in the high court thwarts a sophisticated, multi-pronged conservative legal attack on unions.

First off, the Friedrichs case, in which plaintiffs sought to end public-sector unions’ right to collect “agency” fees from workers they represent who elect not to be members, has seen its prospects instantly turn 180 degrees—from a near-certain majority opinion ruling against unions to a near-certain upholding of the lower court’s rejection of the anti-union argument. With that, the nearly 40 years of legal precedent that has guarded the public sector from becoming “right-to-work” is safe—for now.

But the loss of a conservative majority also kills a broader anti-union strategy that saw attacking union dues merely as a first step. Friedrichs came in the wake of Harris v. Quinn, which ruled that unions couldn’t collect “agency” fees from home-care workers. Conservatives’ next legal point of attack was union membership.

As Moshe Z. Marvit writes for In These Times, the National Right to Work Legal Defense Foundation is already in the process of fast-tracking a case that would have built on the Harris precedent. D’Agnostino v. Baker argues that in addition to mandatory union fees, unions bargaining on behalf of home-care workers who have not opted into membership are in violation of the Constitution’s free speech guarantees.

And if the Court doesn’t rule in favor of Friedrichs, cases like D’Agnostino and a rash of other similar anti-union cases are unlikely to reach the Supreme Court. The bottom line is that labor-friendly judges now sit on most of the major lower courts and conservative attacks on union dues and membership are likely to stall with the loss of a conservative majority.

The longevity of labor’s Supreme Court safe-haven depends on whether President Obama can push a nominee through a hostile Republican Senate—and if not, whether a Republican or Democrat wins the White House in 2016.

A question that looms large over all of these developments is how labor unions will respond. So far they have refrained from comment, likely due to a case of strategic whiplash. In preparation for an unfavorable ruling, public-sector unions have already recalibrated their strategies to focus on reengaging the rank-and-file and trying to convince non-members to join up. One of the upsides of Friedrichs was that it actually served as a sobering wake-up call for unions. It would be unwise for leadership to see this fortunate break as an opportunity to revert to old habits.

The Right Wing’s Union Stomping Ground

While the shift in the Court is a huge blow to conservatives’ national crusade against unions, the Court-based assault has always been just one half of their strategy. The damage to unions and the labor movement has been happening at the state and local levels as well. Just last Friday, West Virginia officially became the 26th right-to-work state, making a majority of the Union in fact anti-union. The state’s prevailing wage law for construction workers was also repealed.

The rapid rollback of the state’s pro-worker laws, which in the broadest sense is the consequence of the decades-long decline in the size and power of the United Mine Workers, is a stark reminder of how anti-union groups are taking advantage of Republicans’ unprecedented control of statehouses to wage war on workers. Groups like Americans for Prosperity and the American Legislative Exchange Council have had tremendous success advancing a legislative strategy that primarily focuses on passing right-to-work laws and repealing states’ prevailing wage laws, which require that government-funded projects pay workers a certain wage.

West Virginia’s new laws closely follow those recently adopted in Wisconsin, Michigan, and Indiana. There are more to come. Missouri’s Republican-controlled House is reportedly considering a prevailing wage repeal. Right-to-work advocates are hovering over the state as well, prepared to spend millions backing the Republican candidate in the 2016 gubernatorial race. For now, departing Democratic Governor Jay Nixon is the only thing standing in the way of right-to-work in the state.

Meanwhile, Kentucky Governor Matt Bevin, who ran as a right-to-work candidate, might not be able to push such legislation through the statehouse thanks to the Democratic-controlled House. Instead, he included a provision in his 2016 budget that repeals the state’s prevailing wage law.

A recent report from liberal think tank Smart Cities Prevail shows the myriad benefits of a prevailing wage and dispels the conservative argument that prevailing wage laws lead to bloated government spending.

Budgets and bills aren’t the only vehicles for anti-worker policy. Last week, the Alabama House of Representatives narrowly failed in its attempt to embed right-to-work in the state’s constitution. In November, Virginia voters will consider a GOP-backed ballot measure that makes right-to-work law a constitutional amendment.

Labor’s New Laboratories

As the right wing has concentrated power at the state level, shifting demographics and a resurgence of progressive politics in urban areas have given the labor movement an arena of its own.

In Minneapolis, Fight for 15 advocates are petitioning to get a measure on the ballot that would hike the city’s minimum wage to $15 an hour. The news comes after the mayor and city council balked at such a big increase. Meanwhile, a city council work group is considering ways to craft a mandatory sick leave law, including funding it through a new payroll tax.

In San Diego, voters will decide this summer on whether to incrementally raise the city’s minimum wage to $11.50 after the city’s Republican mayor vetoed the city council’s previous attempts to raise the minimum.

The Fight for 15 began with fast-food workers in New York City and spread like wildfire to other major cities like Seattle, San Francisco, and Los Angeles, all of which set a $15 standard. New York City has now approved a $15 minimum for all city workers, but cannot raise the wage for all workers—that’s the legal purview of the state. Governor Andrew Cuomo, moving left in an attempt to catch up with his party (and with the state’s Working Families Party, too) has taken up the cause—and if he succeeds, the results could be huge. A new report from the state’s labor department finds that a $15 statewide minimum would pump $15.7 billion into the New York economy as workers see increased take-home pay. 

Tidbits

There’s bipartisan support to save coal miners’ retirement and health-care pensions. But Senate Majority Leader Mitch McConnell is turning his back on the very workers he represents.

Companies with history of safety violation are lobbying against Obama’s executive order that requires federal contractors to disclose their safety records.

While Nevada’s influential culinary union stays neutral, SEIU is going big for Hillary in the state. Meanwhile, Sanders’s aggressive on-the-ground tactics irk some state labor leaders

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