Don’t believe the hype: Janus ruling will help public employee union members – and unions

Don’t believe the hype: Janus ruling will help public employee union members – and unions


The rhetoric from union organizers has been expectedly overheated regarding the U.S. Supreme Court’s coming review of the Janus v. AFSCME (American Federation of State, County and Municipal Employees) case that challenges mandatory dues payments to public-sector unions. Court watchers from the left and right expect the conservative-leaning majority to toss out the practice of requiring non-members to pay “agency fees” used for collective bargaining purposes.

Janus is simply the culmination of decades of attacks on working people by corporate CEOs, the wealthiest 1 percent and the politicians that do their bidding to rig the economy in their favor,” according Eric Heins, president of the California Teachers’ Association (CTA). Many others predict the end of unions as we now know them – and the wanton trampling of workers’ rights. Likewise, some conservatives are celebrating unions’ coming demise.

Yet the reports of the coming death of these unions are greatly exaggerated. Forget the public statements, which seem obligatory. Even many union officials and their staunchest allies recognize that eliminating mandatory dues could be a boon to unions. It’s counterintuitive, but forcing unions to compete for members rather than take their funding for granted will put an end to the complacency that has dogged these noncompetitive institutions.

In a Huffington Post column, “The Janus case: ‘Kill shot’ for unions, or shot in the arm?’,” a former union president, Keith Kelleher, provided historical perspective: “(T)hose early workers didn’t have the luxury of even dues deduction or union contracts, but we, borrowing a page from labor history, started hand-collecting dues, selling chicken dinners on payday, canvassing for donations … until we built the power to win.” After setbacks, “We engaged in disciplined, systematic membership drives,” he added. They “remained flexible” in the face of crises.

A few years ago, public-sector unions were likewise expecting a “kill shot” from a case that was the precursor to Janus. In Friedrichs v. CTA, some California teachers challenged the collection of agency fees by arguing that all spending by government unions – not just direct political action, which could be refunded to nonmembers – was inherently political and a violation of the First Amendment. Janus involves an Illinois municipal worker, but deals with the same issue after the court split 4-4 following the untimely death of conservative Justice Antonin Scalia.

With Friedrichs on the horizon, the CTA in 2014 published a presentation, “Not if, but when: Living in a world without Fair Share.” (‘Fair share’ is what the unions call mandatory agency fee payments.) In the booklet, the CTA outlined a laudable and positive strategy. For instance, the union would “build (an) organizing culture that (has) locals and staff doing more face-to-face engagement with members” and organize “to effectively engage members and build local capacity.” The upbeat document had a tone far different than “attacks on working people.”

Other unions also are preparing for the new ground rules. The American Prospect, a liberal publication, notes that AFSCME “has made it a point to reach out and talk to members and change the way that the union interacts with its members.” It cites a Bloomberg article quoting the AFSCME president: “We’ve found that at times we were treating all of our 1.6 million members as if they were activists, and they aren’t. We were taking some things for granted.”

Governing magazine quoted scholars who admit that the Janus case is incredibly significant, but who pointed to the way unions are “gearing up” for a Supreme Court loss. “To entice people to stay or join, unions could expand their services to include additional low-cost insurance, counseling services to help with on-the-job stress or training programs to advance careers,” it reported.

These statements echo a common theme: public-sector unions will need to be more focused on providing benefits and services to their members. They will need to woo their support and listen to their concerns. How could that possibly be a bad thing for workers? Competition for customers typically brings out the best in organizations.

“This is a moment of truth for unions and their supporters,” wrote Lois Weiner in the progressive publication, In These Times. “We need to look in the mirror and see that Janus has two faces. The case could reduce organized labor to a shell, or it could be the start of a remarkable revitalization that draws strength from the widespread social movements that have emerged from both the Bernie Sanders campaign and Trump’s election.”

Conservatives have rightly focused on the advantages of an “anti-union” Janus decision for individual government employees. After all, the core issue in the case involves compelled speech. Individual workers ought not be forced to subsidize policies and opinions that violate their most fundamental values. Our nation is built on the concept of individual freedom, and coerced speech is anathema to that principle – regardless of what it means to union organizations in general.

Nevertheless, some conservatives also see post-Janus opportunities for unions to adapt in a way that benefits them and their members. For instance, private-sector unions are adapting to the new gig economy by considering ideas such as portable benefits, as R Street Institute President Eli Lehrer has pointed out. The court could force public-sector unions to consider innovative ideas, too. Public employee unions could learn from that sort of worker freedom. In Santa Ana Unified, for instance, teachers terminated in a district financial crisis last year were pink-slipped not according to their merit or even their seniority. They were laid off according to the length of their membership in the local teachers union. The newest union members – even some with years of experience in other districts – were axed first.

A new report from the free-market Competitive Enterprise Institute rebuts the core argument in favor of mandatory dues payments: free riders. Unions argue that it’s unfair for workers to gain the collective-bargaining benefits of unionization without having to pay something for those efforts.

But CEI offers a thoughtful solution: “A policy of members-only unions would resolve” the free-rider issue. “(A) union would only represent, negotiate on behalf of, and collect dues from members of the labor organization. Non-members can exercise their newfound freedom to negotiate a contract with the public employer tailored to their needs.” Indeed, a main problem with the current scenario is specific unions have monopoly rights to represent groups of workers. This proposal would result in unions competing to represent those members.

As always, competition solves most problems. If the court tosses mandatory dues payments, the evidence suggests that unions will adapt and prosper and will better serve their members. Forget the “doom and gloom” rhetoric from union advocates. Even they know that an end to coercion could lead to a reinvigorated public-sector union movement.

Steven Greenhut is contributing editor for the California Policy Center. He is Western region director for the R Street Institute. Write to him at

Want more? Get stories like this delivered straight to your inbox.

Thank you, we'll keep you informed!