Will Janus open the right-to-work door?

By Larry Sand
June 13, 2017

A lawsuit on track to be heard by the Supreme Court could free all public employees from paying forced union dues.

The Friedrichs lawsuit should have done the trick. The case, which would have made belonging to a public employee union optional as a condition of employment nationwide, was set to pass muster with the Supreme Court last year. But when Justice Antonin Scalia died in February, 2016, the almost certain fifth and deciding vote went with him, thus keeping half the country’s government workers forcibly yoked to unions.

But now son of Friedrichs is upon us. On June 6th, the National Right to Work Legal Defense Foundation (NRTW) asked SCOTUS to hear Janus v AFSCME. Mark Janus, a child support specialist who works for the Illinois Department of Healthcare and Family Services, is compelled to send part of his paycheck to the American Federation of State, County and Municipal Employees even though the union does not “represent his interests.” Right-to-work proponents are optimistic that the Court will take the case and that Neil Gorsuch, Scalia’s replacement, will come down as the fifth vote on the side of employee freedom.

Not surprisingly, the caterwauling from the union crowd has already begun. Over at Education Week, Mark Walsh referred to the litigants as “anti-union.”

But the case is simply about forced unionism. To paraphrase President Obama, “If you like your union, you can keep your union.” For real, in this instance.

The Economic Policy Institute, an organization with strong ties to organized labor, claimed that a union loss in this case could “profoundly affect the ability of millions of public-sector workers to improve their wages and working conditions and further the wage stagnation dragging down the economy.”

But EPI is wrong. Using U.S. Bureau of Labor statistics, Jason Hart points out that between 1995 and 2015 the seven states with the highest private sector job growth were all right-to-work. Also, Hart and Mackinac Center director of labor policy F. Vincent Vernuccio point out, “From 2012, the year Michigan passed right-to-work, until mid-2015, incomes in Michigan rose over nine percent, faster than the national average.” Also, former research fellow in labor economics at the Heritage Foundation James Sherk explains “studies that control for differences in costs of living find workers in states with voluntary dues have no lower—and possibly slightly higher—real wages than workers in states with compulsory dues.”

Benjamin Sachs, a professor at Harvard Law School specializing in labor law stated, “This is an aggressive litigation campaign aimed at undermining unions’ ability to operate by forcing them to represent people for free.”

That charge is inexcusable. Sachs is referring the age-old “free-rider” argument. The only laws that compel a union to represent all workers are on the books at the behest of the unions. As Mike Antonucci writes, “The very first thing any new union wants is exclusivity. No other unions are allowed to negotiate on behalf of people in the bargaining unit. Unit members cannot hire their own agent, nor can they represent themselves.”

In fact, if the unions really don’t want “free riders,” they may soon get their wish. At the same time NRTW filed Janus, it also filed Hill v SEIU. Even if Janus flies, workers will still be forced to be represented in contract talks by the union, as the case does not deal with the unions’ collective bargaining monopoly. If Hill is successful, a worker would be able to choose another representative body in contract talks or he could simply represent himself. The upshot is that unions would become “members-only” groups, and therefore would be spared the “free riders” they regularly disparage.

The unions stand to lose big money should Janus emerge victorious. Though a decision in the case is most likely a year away, the unions have a sense that things will not work out for them and are starting to make plans. California Teachers Association Executive Director Joe Nuñez wrote in January that CTA should be prepared for a 30-40 percent membership drop, but then added that he doesn’t believe “it will go that high.”

But however high it does go, it will be damaging to the unions and could have ramifications far and wide. And perhaps no group will be more affected than the Democratic Party. Naomi Walker, an assistant to AFSCME President Lee Saunders and a former Obama administration appointee, said that Janus “could undermine political operations that assist the Democratic Party.” She added, “The progressive infrastructure in this country, from think tanks to advocacy organizations—which depends on the resources and engagement of workers and their unions—will crumble. We need the entire labor and progressive movements to stand with us and fight for us. We may not survive without it—and nor, we fear, will they.”

It’s worth noting that in Wisconsin and Michigan, two recent entries in the right-to-work column, teacher union participation is down considerably. Wisconsin’s NEA affiliate has lost almost 60 percent of its members and Michigan about 20 percent thus far. The loss of these unions’ political clout certainly was a factor in giving Donald Trump narrow victories in both states.

Should SCOTUS decide for Janus, the sun will still rise in the east, but beyond that, much will change. How much, we don’t know, but we do know that many government workers will have more freedom than they do now.  And it would appear that the Democrats’ will not have quite as much dough to withdraw from the teacher union ATM machine.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

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