You will find it here.
Subscribe to:
Post Comments (Atom)
skip to main |
skip to sidebar
A Commentary on the Passing Scene by Robert Paul Wolff rwolff@afroam.umass.edu
My Stuff
https://umass-my.sharepoint.com/:f:/g/personal/rwolff_umass_edu/EkxJV79tnlBDol82i7bXs7gBAUHadkylrmLgWbXv2nYq_A?e=UcbbW0
Coming Soon:
The following books by Robert Paul Wolff are available on Amazon.com as e-books: KANT'S THEORY OF MENTAL ACTIVITY, THE AUTONOMY OF REASON, UNDERSTANDING MARX, UNDERSTANDING RAWLS, THE POVERTY OF LIBERALISM, A LIFE IN THE ACADEMY, MONEYBAGS MUST BE SO LUCKY, AN INTRODUCTION TO THE USE OF FORMAL METHODS IN POLITICAL PHILOSOPHY.
Now Available: Volumes I, II, III, and IV of the Collected Published and Unpublished Papers.
Now Available: Volumes I, II, III, and IV of the Collected Published and Unpublished Papers.
NOW AVAILABLE ON YOUTUBE: LECTURES ON KANT'S CRITIQUE OF PURE REASON. To view the lectures, go to YouTube and search for "Robert Paul Wolff Kant." There they will be.
NOW AVAILABLE ON YOUTUBE: LECTURES ON THE THOUGHT OF KARL MARX. To view the lectures, go to YouTube and search for Robert Paul Wolff Marx."
Total Pageviews
Search This Blog
Philosopher's Stone
Blog Archive
-
▼
2020
(423)
-
▼
October
(28)
- THE QUEEN'S GAMBIT
- ANOTHER WAY OF LOOKING AT IT
- POINT OF PERSONAL PRIVILEGE
- CONFESSIONAL
- LET US TALK FOR A MOMENT ABOUT SOMETHING TRULY IMP...
- A NON-GEOMETRICAL SPECULATION ABOUT LINES
- NINE DAYS
- RUNNING ON EMPTY, GASPING FOR AIR
- MAKING AMENDS
- EGGS BENEDICT
- A DARK OBSERVATION ON A SUNNY DAY
- EIGHTEEN DAYS
- YOU MUST TAKE THE TIME TO LISTEN TO THIS THREE PAR...
- EXPAND THE DAMN COURT
- A LOOK ON THE BRIGHT SIDE
- FOR THE RECORD
- IDLE THOUGHTS ON A DAMP MORNING
- YOU NEVER KNOW
- THE MORNING AFTER THE NIGHT BEFORE
- WHO KNEW?
- STAKING MY CLAIM
- RE;IGIOUS REFLECTIONS
- GIVE THE DEVIL HIS DUE
- JUST TRYING TO KEEP MY HEAD ABOVE WATER
- FURTHER THOUGHTS
- A DAY TO REMEMBER
- WHAT DOES IT MEAN?
- SERIOUSLY, FOLKS
-
▼
October
(28)
About Me
- Robert Paul Wolff
- As I observed in one of my books, in politics I am an anarchist, in religion I am an atheist, and in economics I am a Marxist. I am also, rather more importantly, a husband, a father, a grandfather, and a violist.
30 comments:
Would you be in favor of term limits in addition to packing the court?
-Sam Wolff
A few questions crossed my mind as I watch the hearing for as long as I could stand (15 min plus or minus). I wonder if the nominee realized she is a tool? I wonder how judicial nominees can assert, with a straight face, that their prior comments/rulings on issues will play no part in their decision-making. It has be that the idea of self-reflection has never crossed their mind. Is she the first member of a religious cult to have been nominated to the Court? And finally, can Sen. Leahy ever manage to ask a a question, or series of questions, in a concise, straight-forward way. I did help him get re-elected almost 40 years ago, and have wondered why he never gets any more effective in these situations.
> YOU MUST
OK. BUSINESS AS USUAL. THE STATE IS MARCHING ON. YOU HAVE CONVINCED ME. HOWIE HAWKINS IT IS.
Just heard Senator Klobuchar go on about freedom of the press in her questioning of Barrett.
She mentioned a number of examples, but NO MENTION, OF COURSE, OF JULIAN ASSANGE and the travesty of British justice, preparatory to a future travesty of American justice, being directed against him. See, e.g.,
https://consortiumnews.com/2020/09/28/assange-extradition-craig-murray-your-man-in-the-public-gallery-assange-hearing-day-14/
https://www.jonathan-cook.net/blog/2020-09-02/media-assange-persecution/
https://www.jonathan-cook.net/blog/2020-09-26/guardian-assange-denial-deceptions/
This is a philosophy blog, so let me quote a philosopher. Aristotle said "The law is reason, free from passion." So this may truly be a puppet theatre, but can we as humans, do any better? I think not. The supreme court is the best we can do even though it is a sham. Both parties are interchangeable here, adding justices will only add to the confusion so lets keep it at nine. We still can be political, as Aristotle also says, but why make it more complex? I'm passing on the politics, put the lady in, overturn the big three, Roe, obamacare, same sex marriage, and lets get on with things.
Anonymous --
"The supreme court is the best we can do even though it is a sham." Christ on a cross, could you be any more defeatist? A crucial point that many people fail to understand is that supposedly value-free institutions such as law, science, medicine, engineering, etc., are actually highly imbued with the values and biases of those who operate within those institutions. It is the classic, iconic image of the blindfolded woman holding the scales of justice that is the real sham. Those scales more often than not tip favorably and heavily towards the interests of those justices who hold them -- impartiality be damned. In the interest of a more fair and democratic playing field, I agree with Professor Wolff to expand the court. Of course, if your goal is to limit and restrict democracy, then I perfectly understand your point. Great line from Sen. Whitehouse's presentation: "When you find hypocrisy in the daylight, look for power in the shadows."
-- Jim
Yesterday, Sen. Whitehouse went into a superb exposition explaining how the decision in Janus v. AFSCME came about. For those who are not familiar with the case, it is a major labor law combined 1st Amendment case. The case involves union dues in public employment and who is required to pay them. A union provides services to both its members and nonmembers (not all employees like unions and therefore refuse to join) – collective bargaining for union contracts that specify how much public employees (teachers, sanitation workers, police, etc.) will be paid and what benefits they will receive; it also enforces the terms of the contract, primarily through filing grievances if the contract terms are violated, and arbitration. Now, not everyone likes unions, even some public employees, so some employees refuse to join the union. But by law, the union has to represent everyone employed by the employer. So, those employees who do not join the union still benefit from the terms of the union contract, and if the employer disciplines the employee, including terminating the employee, the employee has the right to file a grievance and demand that the union represent the employee in the grievance/arbitration process. Now, obviously, these services cost money – union officers have to take time to negotiate the contract, and a union steward has to take time (in addition to his/her regular job) to represent an employee in a grievance. The union has to hire a lawyer to conduct the arbitration, or to go to court to argue that the employer has violated the contract. There are expenditures to maintain the union office, to pay for supplies, pay for a secretary, etc.., etc. Union dues traditionally were charged to the employees, both those who joined the union and those who refused to join, to cover these expenses.
Unions also engage in political activity, supporting certain political candidates who support labor rights, and social causes, like the right to vote, perhaps a woman’s right to choose, etc. Supporting those causes also costs money, and the money comes from the union dues. Some employees who refuse to join the union, and even some employees who belong to the union, may not agree with the political/social causes which the union supports, and resent that their money (deducted from their paychecks to cover the union dues) is used to pay for political/social causes they don’t agree with. They may have liked Reagan, but their union dues were being used to support Mondale, etc. So, in a case called Abood v. Detroit Bd. of Ed., some non-union employees complained that being required to pay for causes they did not agree with violated their right of free speech under the 1st ‘Amendment – their money was being used to support causes they disagree with, and therefore their money was supporting speech they did not agree with – a perfectly legitimate objection. (Since these are public employees, their employers are government agencies and are therefore covered by the 1st Amendment – just as government may not curtail your right to free speech, it may not compel you to engage in speech you oppose, which the plaintiffs argued was exactly what was happening when their union dues were being used to support speech they did not agree with.)
(Continued)
The case went to the Supreme Court, and the Court agreed that this arrangement was unfair and they came up with the following solution: Since the employees who did not belong to the union still benefited from the union’s services, the union would have to determine what percentage of their expenditures went for union work (collective bargaining, grievance/arbitration, etc.) and what percentage went for the political/social causes, and the latter percentage would not be included in the union dues of the non-union employees, but they still had to pay for the services which they benefited from, otherwise they would be getting a free ride. The union dues which the non-union employees paid was called a agency dues. Fair enough?
Well Abood stood for 40 years and was working perfectly fine, until along came J. Alito, joined by J. Thomas, who dislike unions – avatars of socialism, communism, who knows. Also (and I am speculating here), Alito, who is after all a Republican, did not like that union dues were being used to support mostly Democratic causes. So what did Alito do? Any time a case came to the Supreme Court involving a public employer and a public union, even when the issue in the case did not involve the issue of union dues, he would raise the issue of union dues and their unfairness in his dissent or concurrence. As Sen. Whitehouse pointed out, Alito was sending out a signal to the world that, hey, if you don’t like having to pay even agency fees, I agree with you and if you sue over it, you will find a willing listener in me (as well as a supporting vote). Sen. Whitehouse correctly pointed out the impropriety of what Alito was doing – he was going out of his way to raise an issue which was not even related to the issue before the court and was using his role as a Supreme Court Justice to solicit a plaintiff.
So along came Janus, in which the plaintiffs were complaining that they should not even have to pay agency fees because they violated their right to free speech under the 1st Amendment. Why? Because the union’s calculations regarding what percentage of their expenditures went to union business versus political business were open to question, and often the union was late in providing these calculations to their members, etc., etc. And Alito grabbed onto this and agreed – Abood was not workable because the unions weren’t providing accurate data, and were tardy in their reporting, etc., etc. Therefore, the 1st Amendment rights of these non-union employees were being violated, so Abood had to go. And go it did – by a 5-4 vote it was overturned (with Alito writing the majority opinion and J. Kagan writing a rousing dissent), portending the decline of public sector unions.
(Continued)
Now, if a public employee doesn’t want to pay union dues, s/he doesn’t have to, it is voluntary. Only those diehard public employees who believe in unions will pay union dues, which of course reduces the amount of money the public unions have to do both their union work and their political/social work, and who benefits – the Republicans, of course. And here’s the clincher – by law, the public union is required to continue to proved union services to all of the public employees in the unit, even the employees who are not paying any union dues, and if they fail to do so, they can be sued by the non-union employee who thinks, for example, that the union is not adequately representing his/her interests during a grievance/arbitration for violation of the duty of fair representation and collect damages for the violation. (Sen. Whitehouse also pointed out something of which I was not aware, that the groups which paid for the litigation costs of the plaintiffs who sought to reverse Abood were anti-union organizations which switched between them when a precursor of Janus lost, to avoid the appearance of their anti-union bias.)
Now, you may think, something seems fishy here. How can the union be required to provide services which benefit the non-union employees, yet the non-union employees do not have to pay for those services. Doesn’t that sound a bit like involuntary servitude? And yes, I believe it does. After I read the Janus decision I was, of course as a labor attorney who represented public employees, infuriated. And the more I thought about it the more I realized that there was something unconstitutional about the Janus decision. The 5th Amendment provides, in relevant part: “No person ... shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The underscored portion relates to the doctrine of eminent domain, according to which government has the right to take your property if it is determined that your property needs to be confiscated for the public good, i.e., to build a highway where your house is located. But in order to do so, the government has to compensate you the reasonable value of your property. Failure to provide such compensation constitutes what is refererd to as a “taking,” and it is unconstitutional. Now, aren’t services “property.” They are, and the Supreme Court has so held (and I assume Marx would agree). Aren’t the public unions being forced to provide services – collective bargaining, grievance-arbitration services, etc. – which constitutes their property, for which they are not being compensated, and are therefore being subjected to a “taking”? I believe they are, and when I realized this, I checked the Janus decision to see if the dissent had made this counter-argument, and I could not find it. So, I wrote a letter to the AFSCME headquarters in Washington and Chicago (where the Janus case had originated) explaining this legal theory to them, and urging them to file suit in federal court arguing that the Janus decision violated the 5th Amendment. I never heard back from them.
While MS's summary of Whitehouse's "exposition" may be useful or accurate (I didn't watch it) their analysis of the general state of public sector labor relations post-Janus is bunk, at least to the extent that it's supposed to apply to California. And their "legal theory" that "the Janus decision violated the 5th amendment" is, well, dumb. As long as this person is representing themself to the readers of this blog as an expert in public sector labor law - complete with a condescendingly expository tone - a few points of clarification are in order:
1) Abood never worked "perfectly fine" for anyone except incumbent labor unions, who could safely rely on agency shop fees to pay their staff high salaries and benefits packages without needing to worry about the quality of representation they provided to employees in their bargaining units;
2) The Supreme Court's rationale in overturning Abood wasn't that agency shop fees violate the first amendment because public sector unions are bad at accounting and record-keeping (even though many of them are). Alito's first amendment analysis was that collective bargaining activity is inherently political speech, and that a public sector employer cannot lawfully compel people to pay to subsidize that political speech as a condition of employment. The plaintiff in that case, Janus, basically argued that he believed that public sector wages and pensions were bankrupting his state and that he shouldn't be forced to pay a labor union to advocate for wage and pension increases that he didn't think his state could afford and that he didn't want to spend his tax dollars on as a condition of his employment with the state.
3) Comparing a labor union's duty to provide fair representation to all members of their bargaining units to "involuntary servitude" would be laughable if it weren't so patently offensive and out of touch. A public sector labor union's duty of fair representation to all members of their bargaining units isn't derived from the transactional relationship between employees in the bargaining units and the union; it's derived from the union's relationship with the employer. In California, for example, recognized employee organizations (unions) in the public sector become the exclusive representative of all employees in their bargaining units with respect to wages, hours, and other terms and conditions of employment. Once a union is recognized as the exclusive representative of a bargaining unit, the employer is barred from negotiating directly with employees in the bargaining unit, regardless of whether the employee is a union member. Functionally, that means that once a union is recognized by a public sector employer, the union is awarded a monopoly on managing the relationship between the members of its bargaining unit and their employer. In exchange for that monopoly, the union is obliged to represent all members of the unit. Which is why:
4) MS's 5th amendment argument is dumb. The Janus decision doesn't result in the government taking union services from unions and giving them to non-members for free. It says that public sector employers cannot enter into a negotiated agreement with an exclusive representative of a bargaining unit that requires non-union employees in the bargaining unit to pay the union to represent them as a condition of employment.
5) A few closing observations: lots of people thought that, as MS says above, the Janus decision "portend[ed] the decline" of public sector labor unions. I know I did. But that's not what public sector labor professionals in California are seeing. Thanks in part to aggressive state legislation post-Janus, and also to a generational shift in attitudes towards socialism and organized labor, public sector labor unions - again, in California- are as strong as ever.
And, perhaps more importantly, public sector unions are generally doing a better job representing their members now than they did before Janus. Why? Because in a post-Janus world the unions have to fight for every single member's dues rather than coast on agency shop fees.
I will respond to Ridiculousicculus’ comments sometime later today. At the present moment, I am in the process of finalizing an appellate brief for filing in the 6th Circuit Court of Appeals and am tasked with excising some 250 words from the brief in order to reach the court rule limit of 13,000 words. It is a painful process.
Let me just say, however, as prologue, that Ridiculouscicculus richly deserves his/her pseudonym and his comments are replete with sophistry. Makes me wonder is s/he may belong to one of the dark money organizations which Sen. Whitehouse was referring to which subsidized the Janus lawsuit.
I can now turn my attention to Ridiculousicculus’ (hereinafter “R”) negative critique of my comments regarding Janus v. AFSCME. I will concede one point - that the main thrust of the 1st Amendment objection to agency fees in Janus was that such fees by necessity subsidize political speech with which some public employees may not agree. Mr. Janus certainly did not agree with the speech in question. He argued that the very objectives of collective bargaining constitutes political speech because it focused on financial decisions which affect the fiscal life of the governmental employer – e.g., pension benefits increase the cost of operating the government, and in some cases could imperil the survivability of the governmental entity, witness, for example, the bankruptcy of Detroit. Therefore, Janus and his colleagues argued, charging non-union employees only a percentage of the union dues which applied to collective bargaining, grievance/arbitration, necessarily entailed supporting political positions, and therefore political speech, which the non-union employee might disagree with. Janus, for example, might prefer a lower wage, with fewer benefits, in order to insure the continued sound fiscal structure of his public employer.
That said, it is still in fact the case that the claim that public unions were not adequately accounting for the percentage of union dues which went to union business vs. political/social causes was a significant factor in orverruling Abood. For those who watched the confirmation hearing of Judge Barrett, one of the main subjects of examination was her view of stare decisis and what basis she would regard it as appropriate to overturn a Supreme Court precedent. Well, in Janus Alito had to deal with this same question, aside from is view that agency fees violated the 1st Amendment, on what basis could he justify overturning a 40-year precedent, and he turned to the question of the workability of the Abood formula, stating, “Abood’s line between chargeable and nonchargeable union expenditures has proved to be impossible to draw with precision.” He then proceeded to devote some two pages of his decision to arguing that the Abood formula was too vague and indefinite to justify continuing to support its ruling in the face of what he regarded as its unconstitutional consequences. So my assertion that alleged deficiencies in implementing the Abood formula played a role in overturning Abood was correct.
(Continued)
Note, moreover, the hypocrisy in Janus’ position, apparently shared by R. Janus objected that all union functions by public sector unions, even those devoted to collective bargaining, were necessarily political and pursued objectives he did not share. Therefore forcing him to subsidize them via agency fees violated his right to free speech. But did Janus then say that, since I should not have to pay for speech I don’t agree with, I must therefore must forego the fruits that union dues help bring to fruition? No, he did not. He wanted to continue to feed at the union trough, but not be required to pay for the expenses the union incurred in order to fill that trough, all so he could say he had proudly defended his 1st Amendment right to be compelled to pay for speech he found anathema.
R. claims that Janus has not had the adverse consequences on public sector unions some feared. I don’t know about California, but in Michigan it has had a devastating impact on public sector unions. And judging from reports, Michigan, not California, is the typical example. See, for example, Iafolla, Robert (6 April 2019) ."Mass Exodus of Public Union Fee Payers After High Court Ruling". news.bloomberglaw.com. Retrieved 21 April 2019.; Eric Boehm (April 9, 2019). After the Supreme Court Said Unions Can’t Force Non-Members to Pay Dues, Almost All of Them Stopped. Reason.com, 11 April 2019
R. writes disparagingly of what he refers to as the “monopoly” that public sector unions, and presumably unions in general, have on public employees. The “monopoly” R. refers to arises from the legislation which designates that only one union will represent the employees who working for a public employer in a particular occupation, and this designation of the union as the exclusive bargaining agent is actually the preference of the public employer, so that it does not have to decide which union to bargain with. And which union becomes the exclusive bargaining agent when there is more than one contender is decided by a vote of the public employees, and the union which wins a majority of the employee votes becomes the exclusive bargaining agent of the employees, something R. derisively refers to as a “monopoly.” The monopoly as R. calls it is necessary to preserve the bargaining power of the union for the benefit of all the public employees in that occupation. It is intended to prevent certain workers from cutting separate deals outside the scope of the collective bargaining agreement, something the employer would love to do in order to undermine the union – and something people like Janus would most assuredly do if they were allowed to.
(Continued)
Finally, regarding R.’s comment that my argument that Janus violates the 5th Amendment is a “dumb” idea. This is why it is not a dumb idea (and my reference to involuntary servitude was obviously tongue in cheek, since no one forces a public employee to continue to work for the same employer, or forces a union to seek to become the exclusive bargaining agent). Under Janus, public employees have two choices – to go it alone without a union, and deal with the public employer on a take or leave it basis; or elect to have a union, which under Janus must provide the same union benefits of collective bargaining to those who do not wish to share in the cost, as those who are willing to kick in some money to obtain the benefits. Its is a Hobson’s choice, imposed by Supreme Court edict and implemented by government employers. Either you go with no union, or you go with a union which, by operation of law, requires that the union provide services – services paid for with the union dues of those still willing to pay them – to those who do not care to chip in their fair share, but still want to enjoy the benefits that collective bargaining provides. That, as far as I am concerned, constitutes a “taking” in violation of the 5th Amendment – government compelled sharing of one’s property – the monies paid by the union members willing to pay them, which is clearly their property, and the services the union administrators and stewards are required to provide, which is their property - to parasites who do not wish to pay their fair share, and therefore is without just compensation required under the 5th Amendment.
Post-script: And guess what happened to Mark Janus after he succeeded to do Alito’s bidding and upended public sector labor unions, all in the name of protecting the sanctimony of his supposed free speech? He quit his job and got a job with the anti-union organization that had funded the lawsuit. See Armentrout, Mitchell. "Mark Janus quits state job for conservative think tank gig after landmark ruling". Chicago Sun Times. Perhaps this is the same organization R. works for.
I had seen only snippets of Whitehouse's presentation before, but I've just now watched all three. It's an amazing performance, and a depressing, to say the least, picture.
The irony of Roe being one of the targets: that was 7 to 2 decision, written by a Nixon appointee, joined by two other Nixon appointees, two Eisenhower appointees, a Roosevelt appointee and a Johnson appointee. The two dissenters were a Kennedy appointee and a Nixon appointee.
People have always tried to predict the S. Court decisions--lawyers argue with a view to appealing to particular members of the Court. But the one thing you couldn't do very well until sometime between Reagan's election and Bush v. Gore in 2000, was predict the outcome based on the party of the president who made appointments. Now it's routine.
The only reasonable conclusion that I can draw from Whitehouse's presentation is that this is not a case of "liberal" and "conservative." It's a case of the Supreme Court's being bought.
University professors do not write letters of recommendations to students who get caught plagerizing, why would you vote for one? Furthermore, I saw a picture of Biden's son smoking a crackpipe.I'm not voting for Trump or Biden, my vote is being saved for a worthy candidate. If Bernie Sanders did everything exacly the same as he did with just omitting the word communist, he would be the nominee right now.
Thoroughly depressing.
MS> his comments are replete with sophistry
Why does MS feel compelled to resort to ad hominem? Not everybody she disagrees with is a sophist. And now he propounds a conspiracy theory:
MS> Perhaps this is the same organization R. works for.
Why can't xe stick to the subject matter at hand?
Sophistry, ad hominem, working to undermine, and changing the subject are the exact reason washington politics are so messed up. People just suck, thats why.
Boris Dagaev,
Asserting that someone’s argument is “replete with sophistry” is not an ad hominem comment about the author of the argument; rather, it is a comment about the analytical quality of the argument, just as calling someone’s argument :”dumb” is a comment on the quality of the argument.
And my speculation regarding R.’s employment derives from the fact that he was defending Janus’s actions, which had an adverse effect on the ability of public sector labor unions to improve the lives of their members, while Janus went on to be employed by the very organization that had funded the litigation. Such conduct does not strike me as particularly honorable, so, I ask, why would someone defend such conduct unless possibly, just possibly, that individual had the same agenda as the individual s/he is defending.
In the case of Boris Dagaev (October 15, 2020 at 11:50 PM) versus MS (October 16, 2020 at 12:56 AM), I, as a member of the public following their exchange, will adjudicate that
(1) MS did not engage in ad hominem by writing that Ridiculousicculus' argument was “replete with sophistry”.
(2) MS did engage in ad hominem by suggesting that Ridiculousicculus "may belong to one of the dark money organizations which Sen. Whitehouse was referring to which subsidized the Janus lawsuit".
This court shall not hear appeals.:-)
Judge Judy
Judge Judy,
I feel compelled to point out, your honor, that you are a trial court, not an appellate court, and therefore do not hear appeals.
However, as a trial court, you can hear motions for reconsideration, and I therefore, your honor, respectfully request that you reconsider part (2) of your above ruling. For, as you are undoubtedly aware, as Justice Frankfurter stated in Henslee v. Union Planters Bank (1949), reversing his prior position, “Wisdom too often never comes, so one ought not to reject it merely because it comes late.”
I didn’t intend to respond to MS’s first reply to my comments on their post because their argument is hardly sophisticated enough to pass for sophistry. But since MS decided to double-down on their unsubstantiated speculation on my background in response to Boris Dagaev, and because Professor Wolff seems to be fond of MS and to value MS’s “lengthy quite intelligent comments, exhibiting a particular expertise in the law,” perhaps it is worth setting the record straight for the benefit of this little corner of the blogosphere.
MS points out “the hypocrisy in Janus’s position, apparently shared by R” in his first response to my comments, and then and goes on to suggest that I “defend[ed] Janus’s actions” in his response to Boris Dagoev. But there’s nothing in my post to indicate that I share Janus’s position on anything. My post clarified what Janus’s position actually was after MS omitted that argument from his ad hoc tutorial on public sector labor relations. I’m not presumptuous enough to assume that anyone on this blog actually cares about what my position on the Janus decision is – I’m merely demonstrating why no one on this blog should take MS’s analysis of that decision or their assessment of the state of public sector labor relations seriously.
MS observes “R. writes disparagingly of what he refers to as the “monopoly” that public sector unions, and presumably unions in general, have on public employees.”
I didn’t say anything “disparaging” about a union’s exclusive right to represent all members of their bargaining units – I compared a union’s exclusive right to represent the employees in their bargaining units to a monopoly, because as long as we’re offering tutorials on public sector labor relations to the uninitiated, the comparison is apt for at least two reasons: (1) a recognized employee organization has the right to exclude other unions from representing the employees in their bargaining unit, and to exclude the members of their own bargaining unit from representing themselves in most negotiations with management; and (2) a recognized employee organization has the exclusive right to collect dues from the employees in their bargaining units. Moreover, that comparison illustrates the real point that I was making in response to MS’s original articulation of the free-rider problem and its relationship to MS’s 5th amendment argument – namely, that (a) the Janus decision doesn’t reflect a taking, it merely prevents a public sector employer from entering into a collective bargaining agreement with a labor union that requires the employer to deduct agency shop fees from non-union member’s paychecks and transfer those fees to the exclusive representative; and (b) that if a labor union wants the exclusive right to represent a particular bargaining unit, then the consideration for that right of exclusive representation is an obligation to fairly represent all members of the bargaining unit regardless of their union affiliation.
MS claims that the right of exclusive representation is “actually the preference of the public employer, so that it does not have to decide which union to bargain with”, but then MS goes on to observe that the right of exclusive representation is “necessary to preserve the bargaining power of the union for the benefit of all the public employees in that occupation.” A careful reader might ask themselves, well, okay, who wants unions to have a right of exclusive representation then, unions, management, or both? The truth is that public sector employers don’t have to “decide” which union to bargain with – representation petitions are governed by statute or a public agency’s labor relations policy; they’re mechanical; and employees in the bargaining unit subject to a recognition petition vote on whether they want an exclusive representative or not. And most public sector agencies with represented employees already bargain with multiple unions representing different bargaining units. The right of exclusive representation is primarily intended to benefit the employees and their labor union – not to make things easier for the employer.
I could go on to elaborate on the fact that M.S.’s “exposition” of the Janus decision, the free rider problem, etc., all presumes that an employee organization requires an extensive and sophisticated professional bureaucracy to provide effective representation to the members, and that the only way to support such a bureaucracy is agency shop fees for non-members – which simply isn’t true, as evidenced by the fact that there are plenty of public sector labor employee organizations are not affiliated with a professionalized labor union and rely on their own members to provide representation to each-other. Or I could spend my morning nit-picking the validity or reliability of the Abood “formula” which M.S. claims used to work “just fine.” But what’s the point? It should already be clear that M.S. overextended themselves in their initial tutorial on Janus and is now busy back-tracking on the dumb things they’ve said and has pivoted to attacking my character rather than the content of my post.
I’ve followed this blog for about 9 or 10 years, because I value Professor Wolff’s philosophical work, political observations, and excellent storytelling. And for what it’s worth, I hope that someday every worker in America will receive the same benefits of collective bargaining that the employees at my public sector agency enjoy. But M.S.’s confused and misguided pontification on public sector labor relations is not the way to persuade anyone who knows anything to adopt those goals, and it would be a shame if they were repeated by participants in this blog.
This is Prof. Wolff’s blog, so I will not monpolize its content by continuing the Ridiculousiculus-MS show beyond this brief retort to Ridiculousiculus’ most recent piece of sophistry – yes, sophistry. S/he claims s/he did not speak disparagingly of public sector labor unions by asserting that they have a “monopoly” by virtue of their “exclusive right to represent all members of their bargaining units.” Well, I am not aware of any reference to the control which an organization may have over others being referred to as a “monopoly” which is meant as a statement of approval. The reference is usually used to imply unfairness, manipulation, and oppression. Indeed, there are two federal statutes the purpose of which is to break up such “monopolies.”
R. proceeds to assert that my claim that the consequence of the Janus decision is a government imposed taking of property without just compensation is so much hooey, because all that happens is the public sector employer is prohibited from deducting from the non-union member’s paycheck any fees to compensate the union for its services, but the union is still required to provide fair representation to the non-paying non-union employee, and the union’s “consideration” for this arrangement - a fancy legal term for compensation – is that the union has been given the status of being the exclusive bargaining representative of all the employees. What R. is saying is that this is a fair state of affairs because in order for the union to be allowed to require the employer to bargain exclusively with the union on behalf of the employer’s employees, to improve their wages, their benefits, their work conditions, the union must do this for free for those employees who do not wish to share in the cost, but still wish to take advantage of the benefits. Who among the readers of this blog would not jump at such an opportunity and believe they were being justly compensated by virtue of having the opportunity to do so?
And finally we have an admission from R. He is writing as a neutral observer offering objective criticism of M.S.’s “confused and misguided pontification on public sector labor relations” on behalf of his “public sector agency,” that is, he is the head of, or a principal administrator in some governmental agency, presumably in California, since s/he opined in an earlier comment on how public sector unions in California are doing marvelously since Janus was decided, and, of course, we can expect an honest and accurate opinion from a public sector employer about public sector unions, when all the evidence indicates that public sector unions were dramatically weakened by the Janus decision, all to the disappointment of public sector employers.
I have more I could say regarding R.’s wise commentary on the advantages of the Janus decision, but I will cut my comment short with an unabashed ad hominem comment, courtesy of George Bernard Shaw: “I learned long ago, never to wrestle with a pig. You get dirty, and besides, the pig likes it.”
MS,
You wrote
"I feel compelled to point out, your honor, that you are a trial court, not an appellate court, and therefore do not hear appeals."
Precisely! I repeat: "This court shall not hear appeals."
Now, shhhhh!
Bailiff, remove the plaintiff and the defendant. Use lethal force if required.
Next case!
Judge Judy :-)
Judge Judy,
“Lethal” force???? A bit excessive, methinks.
Post a Comment