Labor leaders feared last year’s Janus v. AFSCME Supreme Court decision would cripple public-sector unions, but one year after the ruling, union membership in some public-sector industries — like education — has grown, and public-sector unions on the whole have not seen big jumps or dips in membership.
“Instead of gutting the union movement, the decision has only served to revitalize it,” the International Brotherhood of Teamsters said in a press release.
According to the press release, “the Teamsters have more public employee members today than it had before the Janus decision was handed down. And other unions are reporting similar success stories.”
And an analysis of 10 large public-employee unions by Politico released in May found that, while they lost a combined 309,612 fee payers in 2018, they reported a gain of 132,312 members.
On the other hand, the Freedom Foundation–a right-to-work group– claims they “have already helped more than 50,000 government employees predominantly in Washington, Oregon and California opt out of unwanted union dues deductions.” And Janus supporters note that many union members are still unaware of the ruling or its potential impact on their paychecks.
Freedom Foundation points to success in a 25 percent reduction in dues-paying membership of the Washington Federation of State Employees, a 26 percent drop in membership of Oregon’s Service Employees International Union Local 503, and decline of 31 percent of members for the Oregon School Employees Association.
“We send paid canvassers to the homes and workplaces of public employees to inform them of their rights,” says Freedom Foundation CEO Tom McCabe. “We do mass mailings and e-mailings. And when necessary, we provide workers battling their union with free legal representation. It’s hard work, but the results make it worthwhile.”
With the Janus decision, SCOTUS ruled that public-sector unions cannot require non-members to pay administrative–or so-called “fair share” fees. Public-sector unions represent everyone in their chapter, even those who are not members, and labor activists argue that their efforts result in better wages and benefits for everyone regardless of their union membership. Therefore, non-members should contribute to union administrative costs.
The Supreme Court disagreed, based in part on the overt–and overwhelmingly partisan–political activities unions engage in outside of collective bargaining. Public-sector unions support Democratic candidates for office and Democratic policies and donate millions to those candidates and causes, which conservatives and even some progressives view as an unfair political advantage in elections and policymaking.
The American Federation of State, County and Municipal Employees (AFSCME) lawyer in the Janus case, David Frederick, admitted before the court that unions would have less political influence if they lost fair share fees. (A right-leaning think tank, the Competitive Enterprise Institute, argues that unions could be more financially transparent about how they use fair share fees and union dues.)
Unions and some progressives saw this as a corporatist attack on workers because it reduces unions’ revenue and makes it harder for them to effectively collectively bargain for better wages.
David DiSalvo, a senior fellow with the right-leaning Manhattan Institute, isn’t so sure.
“Ultimately this is a First Amendment, free speech case,” he told InsideSources. “It can be framed as an attack on unions, but ultimately the question is a principled one. One has to be careful of separating the principled question from its effects.”
When asked if this SCOTUS decision makes it harder for unions to collectively bargain, he said, “Perhaps. But in many of these [industries], you already have high unionization and the [state] government or the city is already required to negotiate with the union. If the union is able to say we’re doing a really good job winning salary and benefits, then [more] people will want to be members.”
DiSalvo released a report in February showing that union membership hadn’t substantially risen or declined since the Janus case, and that some blue states passed laws to withhold benefits like life insurance from non-members to make union membership more attractive.
But many public-sector employees aren’t aware of the Janus decision or how it affects them.
“One interesting survey is the survey of teachers, ad the truth is, most teachers never understood the technicalities of Janus in the first place, they’re not activists one way or the other,” DiSalvo told InsideSources. “For groups like the Freedom Foundation that are just trying to inform people of their new rights, they’ve got a tough job, because they’re starting with people who didn’t even understand their status in the first place.”
According to DiSalvo’s report, there are lawsuits in all federal district courts from non-members of unions seeking reimbursement for years of paying fair share fees.
The left-leaning Economic Policy Institute pointed out that the decision still undercuts unions’ collective bargaining because they will now have fewer resources specifically dedicated to collective bargaining (i.e., no more fair share fees).
“Janus, and the two fair share cases that preceded it, did not grow from an organic, grassroots challenge to union representation,” EPI argued in a February 2018 report. “Rather, the fair share cases are being financed by a small group of foundations with ties to the largest and most powerful corporate lobbies.”
EPI points out that last year’s decision overturned a 40-year precedent that unions’ ability to engage in collective bargaining is a public good.
“More than 40 years ago, the Supreme Court unanimously affirmed in Abood v. Detroit Board of Education that fair share fees could be collected from public-sector workers,” according to the EPI report. “It was the first Supreme Court case upholding fair share fees. The court stated in Abood that any minor infringement of nonmember objectors’ free speech interests posed by agency fees was justified by the state’s legitimate interest in preventing free riders from undermining a union’s ability to represent the bargaining unit.”
For now, unions seem to be holding their own as membership in some industries picks up, despite an overall decline in membership across both the private and public sector since the 1970s.
Some blue states are passing union-boosting laws to fight back against the Janus decision. Massachusetts just passed a law that allows public-sector unions to charge non-members fair share fees for benefits like legal representation, and Oregon just passed a law codifying certain benefits usually worked out between unions and employers, like paid time to conduct union business.
“For now, the status of public-sector unions in some of America’s largest states remains in flux,” DiSalvo said in his report. “Public-sector unions are likely to remain important political players in the states where they were strong prior to Janus for the foreseeable future. Elsewhere the future will be settled largely in state and federal courts. Janus, however, has likely put to rest any plans for public-sector union expansion or growth.”
