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Jamming Janus – The Public Union Empire Strikes Back

In June 2018 the U.S. Supreme Court ruled on the Janus vs AFSCME case. The result of the decision is that public employees not only have the right to refuse membership in a union, but also the right to refuse to pay so-called “agency fees” to the union.

Unions had been preparing for years for a ruling like this. The Janus case was the successor to a similar case, Friedrichs vs the CTA, which after taking years to work its way through lower courts, ended up deadlocked after the untimely death of Justice Scalia in early 2016.

To hear the reports over the years, and especially in late 2017 and the first half of 2018, Janus was going to be a catastrophe for public sector unions.  On the website of a California AFSCME Council, a news article late last year was titled “Judging Janus: Will California’s Unions Survive?” When the Janus decision was announced last June, Time Magazine published an article entitled “The Supreme Court’s Union Fees Decision Could Be a Huge Blow for Democrats.

Not so huge, actually. What actually is happening post-Janus, at least so far, might remind one of the Y2K virus. Much ado about nothing. The unions were ready.

How public sector unions prepared for Janus, especially in California, is testament to their incredible power.

In June 2018 the California Policy Center published a list of the laws pushed by public sector unions in the state legislature, all of which were designed to minimize the impact of Janus. Here is an updated list:

1 – Requires public employers to conduct a public employee orientation for new employees within four months of hire, and provide a union representative with at least 30 minutes to make a presentation – AB 2935 (2016, passed).

2 – “Would require government agencies to negotiate the details of when, where and how unions could have access to recruit new employees; and to provide job titles and contact information for all employees at least every 120 days (as reported by EdSource) – AB 119 (2017, passed).

3 – Expands the pool of public employees eligible to join unions – AB 83 (passed), SB 201 (passed), and AB 3034 (vetoed).

4 – Makes it difficult, if not impossible, for employers to discuss the pros and cons of unionization with employees – SB 285 (passed) and AB-2017 (pending).

5 – Requires the time, date and location of new public employee orientations to be held confidential – SB 866 (passed).

6 – Precludes local governments from unilaterally honoring employee requests to stop paying union dues – AB 1937 (pending) and AB-2049 (pending).

7 – Makes employers pay union legal fees if they lose in litigation but does not make unions pay employer costs if the unions lose – SB 550 (passed).

8 – Moves the venue for dispute resolution from the courts to PERB (Public Employee Relations Board), which is stacked with pro-union board members – SB 285 (passed) and AB 2886 (vetoed).

THE CONTRACT TRAP

Take a look at this example of an actual recent agreement between an employee and their government union:

As can be seen, this contract has been modified to read “if I rescind my membership and if existing law changes so that non-members are no longer required by law to contribute, I agree that the contributions authorized above shall continue and this authorization shall automatically renew annually, irrespective of my membership status, unless and until I submit a timely signed revocation of this authorization. To be timely, a revocation must be mailed to OCEA’s office, postmarked between 75 and 45 days before such annual renewal date.”

This is known as “contract trapping.” Adding this type of language to contracts is one of the principal means by which public sector unions are retaining current members, and entrapping new ones. Whether or not cleverly written contract traps override the Janus ruling is the issue in a recently filed lawsuit, Few vs. UTLA.

In this case, the plaintiff, Thomas Few, is a special education teacher in Los Angeles. Few was told he could end his membership in the United Teachers of Los Angeles union. But even as a nonmember, the union told him that he would still have to pay an annual “service fee” equivalent to his union membership dues. Few’s position, which is likely to be upheld, is that he cannot be compelled to pay anything to a union he does not choose to join, regardless of what the payment is called.

UNION MEMBERSHIP POST-JANUS

Assessing union membership is an inexact science. The tax returns filed by the unions, Form 990s, are available online. But these forms don’t report the number of members, only the revenue collected, and they are usually a year or two behind.

For example, 2019 will be the first full year that unions will have been living under Janus, and those tax returns probably won’t be available online until late 2020 or later in 2021. The only other way to learn the direction of union membership trends is to rely on what the unions themselves make public, or – sometimes this is effective – to make public records act requests to the payroll departments of public agencies.

On that score, so far the unions seem to be weathering Janus just fine. Based on the public record act requests they made, the Sacramento Bee reported last month that union membership among California’s state workers (not including higher education or K-12 employees) was up about 300 since June, reporting 131,410 dues paying members in October, vs. 131,102 in June. The same report cited the California Correctional Peace Officers Association gaining more than 1,500 members between June and August 2018, and California’s Professional Engineers union gaining 340 members over the summer.

This evidence suggests union membership post-Janus is holding steady due to the new laws and contract language the unions have working in their favor. But unions continue to adapt to the inevitable loosening of the rules that have made it easy for them to collect dues and fees from public employees. Public sector union leadership understands that people either join or quit public sector unions for two reasons – economic, and ideological.

The economic argument for belonging to a union is nuanced. Clearly union “negotiations” with politicians these unions can make or break in the next election have borne fruit. In California, public employees earn pay and benefits well in excess of what private sector workers earn. On the other hand, union dues often exceed $1,000 per year, and public employees may want to keep that money, particularly if they believe the unions have wrung as much as they’re going to wring out of public budgets that are already stretched thin.

Ideological reasons to choose or reject union membership formed the premise of the Janus case; that all public sector union activity is inherently political, and constitutional freedom of speech protection means that public employees cannot be forced to support political activities they disagree with. How many public employees object enough to the political positions of their unions to quit, or never join? To minimize this, unions are pivoting towards emphasizing the services they provide, and downplaying their political activism.

It remains up to opponents of public sector unions to not only fight to enforce Janus, and help members withdraw from unions, but also to continue to educate public workers and the public at large about how much public sector unions have harmed California.

The public schools in California provide a good example. There is a growing nonpartisan consensus that unionizing public education has been a disaster. As argued in the Vergara case in 2014, union work rules in the areas of dismissal, tenure, and layoffs, have had a disastrous impact on the quality of education in California’s most vulnerable communities. Unions have been the implacable, and very effective opponents of charter schools and school vouchers, which would only help improve education. And unions have promoted left-wing classroom indoctrination, something that should even concern leftists, insofar as it takes time away from teaching fundamentals.

Another compelling example of public sector unions harming California are the status of public sector pensions. California’s pension systems, by and large, remain only around 80 percent funded, even though the stock market is at the tail end of a record breaking ten year bull run. In California, public sector pensions and other retirement benefits average over $70,000 per year for 30 years of work, many times what Social Security offers, and there isn’t enough money set aside to pay them. Payments into California’s state and local pension systems are projected to double, from roughly $30 billion per year today to nearly $60 billion per year by 2024. Government unions negotiated these unsustainable pension benefits, and consistently fight against attempts at reform.

Will public sector employees vote with their feet, and leave their unions? Post-Janus, that is easier than ever, and pending litigation will make it easier still. But it is not clear how many of them will make that choice.

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The Varieties and the Potential Impact of Post-Janus Litigation

The landmark ruling by the US Supreme Court in the Janus vs AFSCME case has given government workers the right to not only refuse union membership, but to refuse to pay any dues or fees to that union. In the wake of this ruling, new lawsuits have been filed on behalf of plaintiffs who allege the unions are attempting to circumvent the Janus ruling.

Enforcing Provisions of the Janus Ruling

A notable example of such a case is Few vs UTLA, In this case, the plaintiff, Thomas Few, is a special education teacher in Los Angeles. Few was told that he could end his membership in the United Teachers of Los Angeles union. But even as a nonmember, the union told him that he would still have to pay an annual “service fee” equivalent to his union membership dues. Few’s position, which is likely to be upheld, is that he cannot be compelled to pay anything to a union he does not choose to join, regardless of what the payment is called.

This lawsuit and others are likely to ensure that the Janus ruling is enforced. The practical result will be that government unions lose some of their members, and some of their revenue. But how many? After all, there is a valid economic incentive for public employees to belong to their unions. In California, unionized state and local workers earn pay and benefits that average twice what private sector workers earn.

For this reason, most people refusing union membership will be doing so for ideological reasons. They will find their objections to the political agenda of these unions to be more compelling than the economic reasons to support them. But there are additional ways the unions compel public employees to remain members.

For example, in some cases, within the same bargaining unit, unions will negotiate pay and benefit packages for their members that are more favorable than the pay and benefit packages they negotiate for the non-members. In some cases in academia, only union members are permitted to sit on faculty committees that determine curricula and hiring decisions.

Challenging Exclusive Representation

This right to exclusive representation is the next major target of public sector union reformers. They argue that it is unconstitutional for public sector unions – whose activity the Janus ruling verified is inherently political – to advocate on behalf of non-members, or to represent non-members, or to exclude non-members from participating in votes or discussions on policy, or to deny non-members the same negotiated rates of pay and benefits as members, or, possibly, all of the above.

Just filed this week in the US Supreme Court is the case Uradnik vs IFO, which worked its way through the lower courts in under a year. It is possible it will be heard in the 2019 session. This case calls for an immediate end to laws that force public-sector employees to accept a union’s exclusive representation.

Kathleen Uradnik, a professor of political science at St. Cloud State University in Minnesota, alleges that her union (“IFO” or Inter Faculty Organization) “created a system that discriminates against non-union faculty members by barring them from serving on any faculty search, service, or governance committee, and even bars them from joining the Faculty Senate. This second-class treatment of non-union faculty members impairs the ability of non-members to obtain tenure, to advance in their careers, and to participate in the academic life and governance of their institutions.”

There is a strong possibility that within a few years, if not much sooner, this case will be heard and ruled on by the US Supreme Court in favor of the plaintiff. If so, the future of public sector unions will be altered in ways even more significant than Janus. Unions will be prohibited from discriminating in any way against non-members who are part of their bargaining unit. They also will be powerless to stop public employees from withdrawing completely from their bargaining unit to – gasp – represent themselves in salary and benefit negotiations, something that professionals in the private sector have always done.

The Impact of Non-Exclusive Representation

An impact of a favorable Uradnik vs IFO ruling that would have even greater consequences would be if it enabled the emergence of competing unions. What if two or more unions represented a bargaining group? What if a super-union emerged whose membership welcomed government workers from an entire state, or entire profession, or the entire nation. What if these super-unions embraced a political agenda that ran counter to the left-wing agenda that has dominated public sector unions for decades?

The possibilities are tantalizing.

What if faculty members in America’s colleges and universities had the option to join a conservative union with a national membership that advocated a return to pro-Western college instruction, an end to reverse discrimination, a restoration of academic merit as the sole criteria for admission and graduation, and the abolition of divisive courses of study that offer no useful skills? What if conservative faculty members who have been silent all these years had the power of a national union to protect them from the Left?

What if K-12 teachers across America had a national union to protect them when they objected to curricula designed to turn immigrant children against the people and traditions of their host culture? What if police and firefighters across America had a national union that advocated unequivocally for a merit-based system of immigration? What if civil engineers across America had a national union that was implacably opposed to the environmentalist extremism that has doubled the cost of infrastructure projects and quadrupled the time it takes to complete them?

Enforcing Janus will begin to undermine public sector union power, which is deployed almost exclusively in the service of the Left. Enforcing Uradnik may actually create a balance of power between public sector unions that lean Left vs Right, and that, in turn, would represent a seismic shift in the political landscape of America. At the least, it would neutralize the tremendous boost that public sector unions have given the political Left in America. At most, it might create a hitherto unthinkable consensus in America that public sector unions are indeed inherently political, and have far too much political influence, and must be subject to draconian restrictions including losing the right to collectively bargain, if not complete abolition.

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