Victory For Scabs: Supreme Court Murders Unions
1912 Lawrence Textile Strike

There were a few things I knew for sure at six years old. I knew that Flo from The Supremes had gotten screwed, I knew Ronald Reagan was very evil and also very stupid because even I knew ketchup was not a vegetable and movies were not real, I knew that you could not hug your children with nuclear arms, I knew that the fanciest thing anyone could possibly eat was boeuf bourguignon, and I knew that the one thing you were never, ever supposed to do was cross a picket line.

Yes, most of these lessons were imparted to me by my very smart mother and also Julia Child, but even at six I understood that it was a bad thing to do to hurt people's chances at earning a better living for themselves and their families. I understood how important it was to preserve the right of people to organize in this way. As I grew up, I understood it even more. Unfortunately, the majority of the Supreme Court, like Ronald Reagan, is not as wise as six-year-old me. Because they just voted to make it illegal for unions to require "non-members" to pay "fair share" fees.

This basically means we don't have unions anymore. At least not unions that can do very much in the way of helping workers. It means that the right to organize, the right to collectively bargain, a right that people fought and died for, is effectively gone.

In the 1977 case Abood v. Detroit Board of Education, the Supreme Court ruled that workers who disagreed with the political activity of unions did not have to pay dues that went to support that political activity -- but that if they did not do that, they had to pay what are called "fair share fees" to cover the costs of bargaining, negotiating and other services the union provided to them. Today, in Janus v. AFSCME, the court overturned Abood and decided, 5-4, that these non-members should get all of that for free.

This was already the case in the 28 "Right To Work For Less States," where wages are lower across the board, whether or not people belong to unions. It now means that every state is a "Right To Work For Less" state. It is bad. It is very, very bad.

The official reasoning for those in favor was that the problem of these "free riders" was not enough a problem to warrant "violating" the First Amendment rights of non-members who are opposed to unions but totally want all the good stuff they provide workers for free. In the majority opinion, the court claimed, quite wrongly, that unions in Right To Work For Less states are just as effective as those in free-bargaining states:

The Abood Court's fears of conflict and disruption if employees were represented by more than one union have proved to be unfounded: Exclusive representation of all the employees in a unit and the exaction of agency fees are not inextricably linked. To the contrary, in the Federal Government and the 28 States with laws prohibiting agency fees, millions of public employees are represented by unions that effectively serve as the exclusive representatives of all the employees.

In her dissent, Justice Kagan explained some of the more severe consequences of this decision:

There is no sugarcoating today's opinion. The majority overthrows a decision entrenched in this Nation's law— and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.

Overturning a longstanding precedent, by the way, does not seem very much in line with Justice Roberts' promise to "only call balls and strikes":

I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.

These "non-members" are worse than scabs. They are thieves. Because despite the fact that they do not belong to the union and do not pay union dues, the union is legally required to represent and advocate for them and handle their grievances. They get the same wages, hours, workplace conditions, benefits and rights as paying union members and cannot be treated any differently from paying members. In fact, they can even sue the union if the union does not properly represent them.


Your union has the duty to represent all employees - whether members of the union or not - fairly, in good faith, and without discrimination. This duty applies to virtually every action that a union may take in dealing with an employer as your representative, including collective bargaining, handling grievances, and operating exclusive hiring halls. For example, a union which represents you cannot refuse to process a grievance because you have criticized union officials or because you are not a member of the union. But the duty does not ordinarily apply to rights a worker can enforce independently - such as filing a workers' compensation claim - or to internal union affairs - such as the union's right to discipline members for violating its own rules.

Republicans have wanted this for a long time, and for a variety of reasons. The first reason is lower wages, which is excellent for the rich donors who line their pockets. The average worker in a Right To Work For Less state makes $5,538 less a year than a worker in a free-bargaining state -- regardless of whether or not they belong to a union, because unions raise wages for everyone. Those who belong to unions, especially people of color who belong to unions, make far more than their non-union peers:

Overall, union members earn 28 percent ($198) more per week than nonunion workers. Hispanic union members earn 50 percent ($258) more each week than nonunion Hispanics and African Americans earn 29 percent ($168) more each week if they are union members.

This also means, by the way, that less money will be spent on all that scary liberal education, as Right To Work For Less States spend an average of $2,671 less per pupil.

Their real victory, however, is that if union members must bear the additional costs of representing non-members for free, they will have very little money left over to support pro-union political candidates, ie: Democrats. And because the workers themselves will be making less, they will also have less money to possibly donate to candidates that support them. This, for them, is ultimately about winning elections, workers be damned.

Look who gets it:

Unions are one of the few ways in which people are able to secure social and economic justice without needing any help from the government. A woman or a person of color working in a union knows they aren't being paid less than their white male peers. Unions protect people from being fired for discriminatory reasons, because union employment is not "at will." They offer a recourse for those who experience discrimination at work to file grievances without having to worry about retaliation. They make sure people have health care and benefits and decent working conditions. They were pretty much one of our only hopes in this era of Trumpism, and now I don't know what the hell we're going to do.

In conclusion, fuck scabs, fuck free riders, and whatever the law is, never cross a picket line -- because if you do, you're a scumbag. I'm going to go listen to Bread and Roses and sob for a while.


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Robyn Pennacchia

Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse


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