Government unions dodged a bullet in 2016 when an eight-member Supreme Court deadlocked 4–4 on a case that would have ended the right of labor groups to collect fees from workers who don’t want to be members. In late February 2018, with Justice Neil Gorsuch replacing the late Antonin Scalia, who died before the Court rendered the 2016 decision, the justices heard a new challenge to the compulsory fees in Janus v. AFSCME. Though the Court isn’t likely to render a decision on the case until late spring, worried labor leaders, anticipating that the ruling will go against them, are scrambling to prepare for the worst: a world in which they can no longer forcibly dun workers.
Illinois state employee Mark Janus, a social worker, sued to overturn a state law requiring that he pay the American Federation of State, County and Municipal Employees a fee to represent him, even though he objects to many of its positions and activities. “For years [AFSCME] supported candidates who put Illinois into its current budget and pension mess,” Janus complained in a 2016 opinion piece. His legal brief argued that all government-union activities, including collective bargaining, are political and that the union fees therefore compel him to finance ideas with which he disagrees. (See “Judgment Day for Public Unions,” Winter 2018.)
Janus asked the court to reverse a 1977 decision, Abood v. Detroit Board of Education, which sanctioned laws like the one in Illinois that gives AFSCME the right to collect fees from him. The Abood ruling is based on a notion advanced by labor leaders that nonmembers must pay their “fair share” for the cost of union representation in a workplace. In Illinois, AFSCME has set the “fair share” fee at 78 percent of dues.
Government labor leaders worry about losing these fees because their membership has been steadily declining for a decade. After peaking at nearly 7.9 million in 2009, public-union ranks fell to just 7.2 million in 2017, thanks to government cutbacks in the wake of the Great Recession. AFSCME’s membership is down by 155,000, or 10 percent.
The decline could accelerate after Janus. Sara Steffens, secretary-treasurer of the Communications Workers of America, which represents 60,000 New Jersey public-sector workers, told an AFL-CIO convention last fall that only 54 percent of her members say that they would keep paying fees if they were no longer mandatory. The California Teachers Association estimates that it could lose up to 40 percent of its nearly 300,000 members, according to the blog Education Intelligence Agency.
To prepare for life after Janus, unions say that they’re going to have to spend far more money and time on recruiting and representing members—activities that have taken a backseat over the years to political action. Out of a $202 million budget in 2016, AFSCME spent just $36 million representing workers but $55 million on political activities.
AFSCME leadership is trying to have face-to-face conversations with as many of its 1.35 million members as possible to convince them of the benefits of belonging. The union wants members to sign “commitment” cards to stay on and is also trying to convert as many of its 110,000 fee-payers as possible to full membership before the Court makes a ruling.
Unions are also urging locals to seek changes to collective bargaining agreements that will make retaining members easier, post-Janus. The National Education Association has sent its locals a document, “8 essentials to a strong union contract without fair-share fees,” that urges negotiators to obtain contract clauses guaranteeing that union officials can meet with all new employees to sell them on membership’s advantages. Unions also urge local negotiators to obtain paid “release time” for labor officials, freeing them from their regular government duties so that they can perform recruiting work—on the taxpayers’ dollar.
For inspiration, unions are looking to government groups that already operate in a right-to-work environment—notably, federal unions, where membership isn’t compulsory. Last summer, the publication Labor Notes explained the tactics of a Portland, Oregon, local of the letter-carriers union. One move: help workers file grievances against the post office that result in extra pay—for instance, when letter carriers work past sunset. The local boasts that 98 percent of members earn back their dues by making a blizzard of such complaints, with union help.
Other unions are turning to helpful legislators. A New York bill, recently signed into law by Governor Andrew Cuomo, would leave it to unions to determine how and when members could leave. The legislation also requires new employees to attend orientation sessions designed to enlist the workers into the union.
Much is at stake. Government workers in New York who don’t want to belong to unions pay them more than $100 million a year in fees, according to a recent report by the Empire Center. That kind of money is the biggest evidence that if the court rules in Janus’s favor, unions will struggle fiercely to hang on to revenues.
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