On year after the Supreme Court ruling in Janus v. American Federation of State, County and Municipal Employees that was supposed to decimate public sector unions, organized labor appear to have absorbed the blow better than expected.
The ruling said that public sector workers could not be forced to join or otherwise financially support a union if they didn’t want to, ending a common feature of union public sector contracts. Conservatives predicted that the 5-4 decision, written by Justice Samuel Alito, would be a major financial blow to the labor movement. “Every year for decades, billions — billions with a B — of dollars have been taken by force by government labor unions from workers without their permission and spent on politics against their wishes,” Grover Norquist, president of Americans for Tax Reform, said last year when the ruling was announced. “That ends today, decades late, but once and for all.”
But unions have responded by putting an increased effort into recruiting and retaining members. They’ve also pushed friendly statehouses to pass measures that effectively circumvent the Janus ruling by limiting the ways that workers can opt out. And in many cases, union members aren’t even aware of their rights under Janus, as unions haven’t promoted them.
The main public sector unions have not reported large membership losses in the year since the ruling came out. AFSCME, the defendant in the case, reported in March that its membership was 1.3 million, up by 27,000 from last year, according to a Labor Department filing.
“In 2018, AFSCME added more than 9,000 dues paying members and more than 18,000 dues paying retirees — even as billionaires and corporations spent vast sums on campaigns attacking our union and attempting to persuade our members to quit,” Teague Patterson, AFSCME deputy general counsel, told the House Education and Labor Committee on Wednesday. He attributed this to workers seeing a need for a union for economic security. “Our workers know that their union is their union.”
The federal data shows, however, that union’s revenue fell in the same year, by $1.5 million to $197 million. Membership accounted for $181 million of that revenue, a figure down $4.5 million from the previous year. Thus, dues are declining despite a rise in members, suggesting that AFSCME is having a hard time getting payments from all of them.
Other public sector unions appear to be holding steady. The American Federation of Government Employees reported its membership in March at 333,000, up about 700 from the previous year. Its dues revenue was $81 million, up $2 million from last year. The Service Employees International Union, which represents public and private sector workers, reported its membership at 1.9 million, down a marginal 1,000 from last year. Two of the other leading public sector unions, the National Education Association and the American Federation of Teachers, have yet to file with the Labor Department.
William Messenger, an attorney with the National Right to Work Legal Defense Foundation, which argued the Janus case, said unions had simply gotten good at finding ways around the decision.
“In response to Janus, several state governments, at the behest of union officials, have implemented various schemes to attempt to circumvent the decision,” Messenger told the House Education and Labor Committee on Wednesday. “These schemes include forcing workers to attend mandatory union recruitment meetings, requiring the disclosure of personal information to union officials, and prohibiting workers from stopping the deduction of union dues from their wages except during short escape periods.”
The Massachusetts Statehouse, for example, has legislation pending that would allow unions to charge nonmembers a “reasonable” fee for representation grievance cases and for other services — a powerful tool for unions, since they typically have exclusive rights to provide those services. The legislation would also ensure the unions have private contact information for public sector workers and the right with to meet with new hires for at least 30 minutes within 10 days of their hiring, as well as the right to use government buildings for these meetings.
Congressional Democrats sought Wednesday to aid the unions’ pushback by introducing the Public Service Freedom to Negotiate Act. The legislation would, among other provisions, ensure that unions could get dues or “fair share” fees automatically deducted from workers’ paychecks. In effect, it would make it easy for workers to sign away their Janus rights.
Democrats framed the provision as protecting workers by ensuring that the unions were strong. “While the Public Service Freedom to Negotiate Act of 2019 cannot correct the Supreme Court’s misreading of the Constitution in Janus, it can lessen its consequences by strengthening the rights of public sector workers,” said Rep. Frederica Wilson, D-Fla. The legislation is unlikely to ever be picked up by the Republican-led Senate.
Enforcing Janus rights has become an issue in the last year. Mark Smith, an employee of the Superior Court of Contra Costa County in California, sued AFSCME last year, claiming his effort to resign was not honored by the union, which continued receiving funds cut out of his paychecks. Delaware County, Pennsylvania, school bus driver Michael Mayer sued the Teamsters last year, claiming he attempted to exercise his rights under Janus just weeks after the ruling, only to have the union ignore it and the school system continue to deduct dues. Both cases are still pending.
“The ‘Janus enforcement’ case count seems to change by day, but we definitely have over two dozen active cases,” said National Right to Work Legal Defense Foundation spokesman Pat Semmens.
Semmens’ group is far from the only group pursuing these cases. At least eight lawsuits by teachers claiming school districts have been filed in California alone by various groups alleging violations of the Janus decision. The California Teachers Association has said they’ll enforce any dues payment agreement a teacher may have signed to the letter. “Members can drop out at any time. But, like a gym membership, they still signed a contract to maintain paying dues,” Laura Juran, the CTA’s chief counsel, told the trade publication EdSource.
That’s if the teachers even know they can drop out. A survey of 1,000 educators released this week by TeacherFreedom.org, an online group supported by the Association of American Educators, a nonunion teacher advocacy group, reported that only 23% of those surveyed knew of the Janus decision. Only 22% of those who were said they were inclined to leave their union, and only 1% had. Overall, 74% agreed union membership should be voluntary.
Misinformation was common. Almost half, 46%, said they erroneously believed leaving their union would cost them tenure, seniority, and pay raises, all things not legally contingent on union membership.
