Although it was overshadowed by reaction to Monday’s ruling on Hobby Lobby’s health insurance coverage of contraception, the Supreme Court made a ruling the same day that otherwise would have received more attention in its own right.
Harris vs. Quinn at first glance covers only very narrow ground. It involves the rights of home health aides who are paid by Illinois’ Medicaid program, a majority of whom voted for representation by the SEIU, to opt out of both union membership and paying dues. Under previous case law, even non-members could be required to pay a lower rate of dues to compensate the union for the cost of representing them, which unions are required by law to do for even non-dues-paying members of a bargaining unit. The Alito majority decided that even this lower tier of dues was too much, although they apparently have no problem with unions being required to represent everyone in a workplace whether or not they pay dues.
Bear in mind that the Wagner Act’s requirement for a single union to represent everyone in a workplace originally reflected management interests. Although the organization of all crafts and trades in a workplace into a single industrial union was central to both the Wobbly and CIO model, Congress was more likely inspired by the practice of “American Plan” company unions created by progressive CEOs like Gerard Swope of GE. Swope and like-minded employers preferred negotiating a single deal with a single union, avoiding the confusion and ungovernability of a Balkanized workplace that could be shut down by any one of innumerable craft unions going on strike.
At the same time, Wagner served the need of employers for bargaining agents that, in return for productivity-based wages, a grievance process and seniority-based promotion, would enforce labor contracts against rank-and-file members and prevent wildcat strikes and on-the-job direct action that might disrupt the production process. That bargain was the basis of the New Deal labor accord.
At the time it seemed like a fairly good deal, even though workers were forced to give up many devilishly effective forms of direct action — wildcat strikes, slowdowns, good work strikes, working to rule, sitdowns — that they’d used before Wagner. And it would probably have remained a good deal, had employers considered it worth continuing to adhere to.
But starting with Taft-Hartley, Congress began amending this accord — in every case, to the detriment of gains previously established on the workers’ side. Taft-Hartley prohibited sympathy and boycott strikes and opened the possibility of state “right-to-work” laws. Starting in the late ’60s, when employers increasingly saw themselves no longer needing unions as partners in imposing discipline on workers, they began exploiting the full union-busting potential which had lain dormant in Wagner all the previous years. Private sector union representation has declined from thirty-plus percent in the ’50s to six or seven percent today.
So now maybe it’s time for workers to ask ourselves if what we’re getting in return for our concessions under the Wagner regime is worth it. In that accord, we gave up our most effective asymmetric warfare weapons against employers in return for labor peace with some minimal guaranteed benefits. It was analogous to the farmer militia at Lexington agreeing to come out from behind their rocks, put on red uniforms and march in parade ground formation, in return for being guaranteed minimal victories part of the time. That’s no longer working out so well. Maybe it’s time to take off those uniforms, get back behind the rocks and stop playing by a rulebook created by the state in league with the bosses.
Wagner was passed in the first place because the bosses didn’t like the hide they lost when we fought by our own rules. Apparently their memories have faded. We need to go back to fighting by our own pre-Wagner asymmetric warfare rules — the kinds of direct action described in the Wobbly pamphlet “How to Fire Your Boss” — and remind the bosses that we don’t need them. They need us.
