Janus v. AFSCME: What now?

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The death of Supreme Court Justice Antonin Scalia triggered relief among America’s public employee unions and disappointment among conservatives. Without Scalia, Friedrichs v. California Teachers Association deadlocked the court 4 to 4, leaving California’s agency fees intact. It was only a temporary stay of execution.

Janus v. AFSCME put the issue back in front of the court after Scalia had been replaced by Neil Gorsuch. In a 5 to 4 decision issued in June, the Supreme Court ruled that agency fees were a violation of the plaintiff’s First Amendment right to free speech.

We solicited comments on the implications of the Janus decision from two well-informed commentators, Adam Urbanski, longtime president of the Rochester Teachers’ Association, and Ken Girardin, policy analyst at the Empire Center for State Policy.

A bit of background is in order. If a labor organization is supported by a majority of employees, the National Labor Relations Act requires that employers recognize that organization as the exclusive bargaining agent of all employees in the workplace, even those who are not members. Recognizing that nonmember workers receive the benefit of the union’s collective bargaining efforts, 22 states have permitted unions to assess these workers a fee to cover the cost of negotiations.  These agency fees—the cost incurred by the union to serve as the nonmember workers’ agent—were the target of both Friedrichs and Janus plaintiffs. They argued that the collective bargaining process could not be apolitical.

The majority Janus decision, written by Justice Samuel Alito, found that “union speech covers critically important and public matters such as the state’s budget crisis, taxes, and collective bargaining issues related to education, child welfare, health care, and minority rights.” The decision concludes that requiring a fee that supports collective bargaining is compelled speech and a violation of the First Amendment.

What now? That’s the question we asked our two commentators to address.

Adam Urbanski has been President of the Rochester Teachers Association since 1981 and has long held national leadership roles with the American Federal of Teachers. Urbanski asked that in lieu of an essay, the Beacon conduct an interview. The interview was conducted by Beacon Opinion Editor Kent Gardner on Sept. 18.

Gardner: Thanks for taking the time to discuss what has been described by many as a landmark decision. For starters, would you explain how the agency fee is calculated for Rochester teachers. Isn’t the point of the agency fee to separate funds supporting political activity from funds supporting contract negotiations?

Urbanski: First, let me point out that union dues are not used for political purposes. We are required to maintain careful financial records, audited every year. Political contributions, for example, are kept entirely separate from union dues. All political donations come from voluntary contributions by members to a fund called VOTE/COPE.

The paycheck of a union member who chooses to contribute to VOTE/COPE will show two payroll deductions, one for union dues and another for VOTE/COPE. And 55-60 percent of our members choose to contribute because they believe that the union voice should be heard. We tell our members that if we don’t have money to contribute to people who support our positions, public education’s positions, that we’ll be more at risk.

And we don’t just give to Democrats. The strongest, most consistent support from our local union has gone to Republicans, to Jim Alesi when he was here, to Joe Robach, and to Rich Funke.

The agency fee, too, is determined every year by our auditors. But the difference is very small, as most of what we do at RTA is represent teachers. There are specific services that nonmembers are not entitled to, such as legal representation or representation in a dispute with the administration. But when someone calls and asks for help, I don’t ask if he or she is a union member. I just say, “I’ll be right there.”

Gardner: So what is the actual difference between the union dues and the agency fee? 5 percent? 10 percent? And how many were paying only the agency fee?

Urbanski: It changes a bit every year, but the agency fee difference is very small—single digits. And very few bother to ask that the difference be rebated. The dues are deducted by the district. Nonmembers who wish to receive the rebate submit a form to the union and are paid back. Frankly, I think that the 100 or 200 who have not been members in the past didn’t even realize that they weren’t members. They just hadn’t actually joined. Very few have asked for the rebate.

Gardner: The impact of the Janus decision has been compared to Wisconsin’s 2011 Act 10 and Michigan’s 2012 Right to Work law.  Should we expect union membership in NYS to follow trends in these states? The Milwaukee Sentinel reports that Wisconsin unions went from representing 14 percent of workers in 2011 to 8 percent in 2015, a loss of 132,000 members. (Editor’s note: Act 10 imposed more significant restrictions on unions than will result from the Janus decision). Michigan union membership also declined. U.S. Department of Labor filings indicate that Michigan Education Association membership fell 25 percent after the state’s Right to Work law passed (from 2012 to 2017). What has been RTA’s experience in Rochester?

Urbanski: Before this decision, the union could charge an agency fee to workers who were not members of the union to cover the cost of representation. Now Janus says “if someone chooses not to join the union, they should not be charged anything.” Everyone was informed of that from various sources including by us: “You no longer have to be a member of the union. And if you are not a member, you do not have to pay dues. Here’s why we think you should be a member. And if you agree and you choose to do so, please sign this recommitment card.” By law this is required for the district to withhold union dues from their paychecks.

We made our case for their continued support and more than 97 percent recommitted. We submitted these cards to the Rochester City School District as the district handles the payroll deduction. To prevent this from becoming a clerical nightmare there is a window of time within which you can opt out, which here is the month of August. That’s not a final figure, however, as there are members we’ve not been able to contact and the district hired a number of teachers in August. They are still hiring, in fact. So we have not approached all of the new hires.

I see this result as a vote of confidence in the union. Unions have to prove their value. If my members thought that the union was a waste of time and money, then they wouldn’t volunteer to pay almost $1,000 a year in dues! My members are well-educated and cannot be easily fooled or bullied. Our experience is consistent with that of other unions across the state. I believe that the average statewide is 90 to 92 percent, some of the smaller unions are getting 100 percent signup.

Gardner: Why do you think the NYS experience is different than that of Michigan or Wisconsin? These have been strong union states historically.

Urbanski: They have had a strong union presence in industry but not among public employees. Enrollment among public employees in NYS has always been higher.

Gardner: How will the Janus decision affect the relationship between public employees and their unions over the long term?

Urbanski: This may sound odd, but I welcome this change. I think that unions have to demonstrate their value and this will force us to be responsive to teachers’ needs. I’ll tell you this: If only 60 or 70 percent of our teachers had signed up, I’d advance my plans for retirement! I view the support we received as a vote of confidence in how our members view our union’s work.

Gardner: How will Janus affect the unions over the long term?

Urbanski: Maybe Janus is a blessing in disguise. An important free market force is going to come into play: If unions don’t earn their support from those they are supposed to serve, they won’t continue. And they have to continue to earn that support on an ongoing basis. It will make unions more responsible and more responsive to their members. It will become a problem for those unions for whom it deserves to be a problem and a huge boost for those unions which do deserve the support. It will be an ongoing reality check.

Gardner: Your long tenure as RTA president is testimony to your members’ conviction that you represent their interests very effectively.

Urbanski: Yes, but the teachers also know that while I am committed to protect them, the students are my highest priority. And if the students aren’t doing well, the teachers will be resented in the community. And that is what we’re living with now. Our students are not doing well. I want to dedicate most of the resources of the union to help teachers learn how to be more effective rather than to just protect them even more tightly.

Here are Ken Girardin‘s views on the topic. Girardin performs detailed analysis of data and public policy in support of the Empire Center for State Policy’s research work.

Four months after the Janus decision, tens of thousands of New Yorkers are taking home bigger paychecks thanks to the end of forced union fees, having saved about $30 million in the last three months. The ruling brought New York unions in line with their counterparts in the federal government and in right-to-work states, which operated without these fees in the first place. The ruling doesn’t affect the right to organize, or any other part of the bargaining process. It just says no one can be forced to pay the union in their workplace.

That’s a fair arrangement, considering state law also prohibits individual employees from negotiating for themselves, or from having a rival union speak on their behalf.

Americans don’t agree on much these days, but one enduring point of consensus is that no one should be forced to support a political cause they don’t agree with. And the essence of the Janus ruling is the recognition that everything a public employee union does is inherently political, because whether the union is sitting at the negotiating table, filing a grievance or lobbying elected officials outright, every action aims to influence public policy. Much of what government does reflects what’s negotiated between our local governments and the unions representing their workforces.

In Rochester, the teachers contract dictates everything from the length of the school day to the number of students in a classroom. And Gov. Andrew Cuomo unknowingly reinforced this point in June when he characterized public-sector unions as a “political entity.”

The ruling corrected a 1977 decision by justices more concerned with quelling labor unrest than respecting the rights of individual workers. As recently as this year, former state Attorney General Eric Schneiderman and other agency-fee proponents insisted without evidence that fees were needed to maintain “labor peace.”

The First Amendment doesn’t just protect us from having our right to speak infringed, but also from compelled speech, something that arguably does more to encroach on a person’s dignity than does the act of preventing him or her from speaking in the first place. For instance, it’s one thing to tell someone they can’t place a bumper sticker on his or her vehicle. But forcing that person to display a particular bumper sticker, or worse, particular political bumper sticker, is, by objective measures, a more severe violation. Such was the case with union agency fees.

So what’s next?

Janus merely marks a return to how every government union operated in New York until 1977. One of the state’s largest unions didn’t require agency fees until 2001, and agency fees weren’t universally collected by local governments and school districts until 1992.

Before Janus, union membership rolls were buoyed by the fact that workers were told upon hiring they had to pay the union regardless of their choice. Many people signed membership cards thinking they had no alternative, though about 200,000 New Yorkers still paid agency fees each year. Many were new employees who later became members, while others had taken the conscious step to leave or never join. It remains to be seen exactly where these numbers will shake out, but if a union is presenting its workers with ample value, there’s no reason to worry about a mass exodus. Janus only poses a concern for unions where the perceived benefit isn’t commensurate to the dues, or where workers feel alienated by the union’s activities–both of which are situations union leaders can avoid.

Unions will, however, face greater pressure to show, and to justify, how they spend each dollar at each level of representation, and that could upend a long-standing dynamic under which many New Yorkers belong to not one but three or more separate organizations: a local union, a state organization and at least one national affiliate.

Whether they know it or not, a teacher in Rochester is paying to belong to not one but five organizations. The first $234 in dues paid by a full-time RTA member leaves the state altogether. It’s sent to national unions under an arrangement whose origins date back to before some members were born. The unions, the American Federation of Teachers (AFT) and National Education Association (NEA), use these affiliation fees to fund national political efforts in presidential and legislative elections, and little comes back to New York in any measurable way. Some of the portion paid to the AFT then goes to that group’s parent union, the AFL-CIO, which also uses a piece of the funds for politics.

Another $378 goes to the New York State United Teachers (NYSUT), the statewide teachers union based in Albany, leaving only about a quarter of RTA dues to be spent on local priorities.

Now that people can choose to stop paying altogether, unions have little choice but to be more mindful of the political activity of parent organizations. Federal records show each RTA member who worked during 2016 funded efforts against both Bernie Sanders and Donald Trump, despite insistence from state-level union officials that dues aren’t spent on politics. NYSUT, meanwhile, regularly takes positions on topics totally unrelated to the teaching profession, ranging from foreign trade to health care.

The cost, and consequences of affiliation has sparked some workers, including teachers, to reorganize as self-sufficient local unions. The roughly 20,000 teachers of Clark County, Nevada earlier this year formed their own independent union, after years of representation by (and payments to) the NEA and its state affiliate. Here in New York, the state’s corrections officers split from their national union, AFSCME, in 2000. And Rochester teachers need not look far for an example of local unionism. The city’s 700 uniformed police officers belong to the Rochester Police Locust Club, an independent union that spends 100 percent of the dues it collects on representing its local membership. Workers pursuing this approach could reduce both the cost of dues and exposure to controversy, making membership an easier sell—albeit at the expense of the established order.

Regardless of what transpires within the unions themselves, workers will benefit from Janus because the unions counting on them to keep paying have no choice but to treat them like customers and work harder to earn their business. But as with everything in the marketplace, it remains to be seen just what these customers will demand.


2 thoughts on “Janus v. AFSCME: What now?

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