After Janus

By Larry Sand
November 21, 2017

If the Janus case is successful, will it be the first of many shoes to drop? 

Janus v AFSCME is due to be heard by the U.S. Supreme Court early in 2018, with a decision announced in June. If the lawsuit is successful, no teacher or any public employee in the U.S. would have to pay money to a union as a condition of employment. A couple of weeks ago, I covered the possible political fallout of the case, but what other ramifications could (and should) there be? Here are just a few ideas.

Perhaps the first thing that could be done is eliminate the unions’ ability to establish themselves as exclusive representatives of all employees. Even if Janus flies and teachers and other government workers are no longer compelled to pay anything to the union, they will still be forced to be represented by the union in most states. The unions call these people “free riders.” Bushwa. They are forced riders. The unions insist on exclusivity. Were teachers allowed to bargain for themselves or even form a rival union, Big Labor would face its worst nightmare, even more abhorrent than a right-to-work country – competition. As Mike Antonucci writes, “The very first thing any new union wants is exclusivity, whereby “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.”

Congress passed the Sherman Antitrust Act in 1890, and it remains the core of antitrust policy. It prohibits the restraint of trade and abuse of monopoly power. Maybe 127 years later we should apply the law to unions.

Another important change would be to require unions to recertify themselves on a regular basis. If your grandma hired a law firm to help her get through some legal issues, would you have to hire that same law firm 40 years later? Of course not. But as things stand now, Nana could have voted a union into power in the 1970s (or before) and if you ply the same trade as she, you would be forced to be represented by the same union. In fact, just 6 percent of workers represented by a union today voted for that union to represent them.

The poster child for recertification is Wisconsin Governor Scott Walker, whose Act 10 dramatically curtailed collective bargaining for most public employees, including teachers.

Among other things, the law requires that collective bargaining units take annual votes to maintain certification as a union. Passed in 2011, the law saw over 100 public school unions in Wisconsin decertified by teachers by 2015. “Inherited” unionism has to go. There is no place in America for intergenerational power. It may do wonders for the Kim family in Korea, but it stinks for everyone else.

A third change that would benefit many is the elimination or minimization of collective bargaining agreements (CBAs), which in the education realm don’t serve kids, good teachers or taxpayers.

Rick Hess, of the American Enterprise Institute, and Martin West from the Brookings Institute point out that CBAs are vestiges of the industrial economic model that prevailed in the 1950s. “Collective bargaining contracts are especially problematic on three fronts: 1) they restrict efforts to use compensation as a tool to recruit, reward and retain the most essential and effective teachers, 2) they impede attempts to assign or remove teachers on the basis of fit or performance and 3) they over-regulate school life with work rules that stifle creative problem-solving without demonstrably improving teachers’ ability to serve students.” Since the advent of Act 10, graduation rates and the number of advanced placement tests taken have been trending upward in Wisconsin.

Wage compression,” occurs when the salaries of lower paid teachers are raised above the market rate, with the increase offset by reducing pay of the most productive ones. “Why strive to become better if I am not going to be compensated for it?” is the attitude of many. Mike Petrilli of the Fordham Institute takes it one step further, claiming CBAs hurt the bottom line of all teachers. He compared teachers’ salaries in districts across the country which allow collective bargaining with those that don’t. He found that teachers who worked in districts where the union was not involved actually made more money than those who were in collective bargaining districts – $64,500 on average versus $57,500.

To show benefits of restricting CBAs for taxpayers, we can again look at Wisconsin. Between the arrival of Act 10 in 2011 and 2016, the law saved the state’s taxpayers $5.24 billion, according to an analysis by the MacIver Institute.

Should the court rule on the side of liberty in the Janus case, it will be a blow for worker freedom, but there is a lot more work to do.

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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