Democrats Rig Rules to Boost Unions Against Janus Decision
Steven Greenhut
by

Sacramento

When asked about his ultimate goal, a union president reportedly offered a simple answer: “More.” Public-sector unions always are pushing for higher pay and benefits and more protections for members. Getting more is a journey. There is no end game. Therefore, it has been enlightening seeing how these unions react when faced with the prospect of having “less.” Not surprisingly, they — and their allies — are accepting the new reality with the same graciousness that a pit bull shows when you try to yank a steak bone out of its mouth.

The possibility of “less” comes from the U.S. Supreme Court’s decision last June in Janus v. American Federation of State, County and Municipal Employees. The high court ruled that forcing public employees to pay mandatory dues to a union is a violation of the First Amendment, thus overturning a state of affairs that has existed since the court decided the Abood case in 1977. Since then, public employees could opt out of paying for a union’s direct political activities but still were required to pay an “agency fee” to cover collective-bargaining activities.

Mark Janus, the recent case’s plaintiff, argued that everything a public-employee union does is essentially political given that it involves public funds and public policy. If a teachers’ union, say, gains a new protection for misbehaving employees, then that may reduce the quality of public schools. If a janitor’s union scores a massive new payout that leaves fewer dollars for other public services. The court agreed. Now we are seeing the details play out as some members try to quit their unions and keep their hard-earned cash.

Union boosters and critics have long seen this coming. The nearly identical Friedrichs v. California Teachers Association case was headed toward a similar verdict before Justice Antonin Scalia’s unexpected death in 2016. The court deadlocked on that case, but Justice Neil Gorsuch cast the deciding vote in the ensuing Janus case. Leading up to the two decisions, union officials had predictably ranted about impending doom for the rights of workers.

However, some union officials were more circumspect at the time. The CTA produced a 2014 presentation arguing that mandatory agency fees were eventually going away and that unions would need to adapt and better serve their members. “I think [Janus] is going to hurt, but it need not be the end of the world,” said the president of the California Federation of Teachers. “Frankly, we’re going to have to do the kind of organizing that we should have been doing all these many years.” He noted that organized labor had become complacent.

Well, yes, it is easy to become complacent when you simply take people’s money rather than compete for their dollars by offering wanted services. Nevertheless, the unions’ usual bad-cop shtick quickly overtook that good-cop approach. The California Legislature, which behaves like a wholly owned public-sector union subsidiary, began passing laws designed to undermine the expected ruling. Unions began engaging in practices designed to “trap” members into giving up any forthcoming rights they might get from the ruling. It was ugly and it continues.

The first series of laws expanded union membership as unions expected falling membership rolls. One applied to judicial jobs and another lets students who work at the universities they attend join unions. Another law prohibits employers from deterring union membership. The arbiter of the rules would be the Public Employment Relations Board (PERB), the pro-union government board that tossed out a San Diego pension-reform vote by arguing that the city was required to first meet-and-confer with unions over any changes.

Another new law requires the employer to pay legal fees if a union wins any wage disputes. Yet another new law puts the union in charge of all aspects of dues deductions and requires the union to okay any informational mailing about dues payments that the agency might send to its employees. One troubling new law provides a complete defense to public employers and unions against any successful claims regarding the withholding of any dues payments.

The state Legislature also gave unions the right to provide on-the-job “orientations” where they can pitch union membership and gave unions the ability to set virtually all the terms of those orientations. A couple of bills that have failed, but that may be re-introduced, precludes governments from unilaterally honoring employee requests to stop dues payments.

Before Janus was decided, California unions sent contracts to their employees in which they agreed to give up any new rights they might receive from the court ruling. Here is one example of such language: “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.”

Prior to Janus, the unions predicted an apocalypse. Since the decision, they have changed their tune. Disaster was averted, according to one Salon article. It quoted a union president who said, “Anyone writing our obituary is going to be sorely disappointed.” Unions had predicted a drop of as much as 30 percent of their membership but, so far, their membership rolls have held steady. There are some examples of declines, but the Sacramento Bee reported that overall state public-sector union membership actually is up a tiny bit.

It is too early to tell, of course, because of those above-mentioned laws and trap contracts that make it exceedingly difficult to leave the union. We still need to wait for reporting deadlines. Unions have provided the smallest-possible window for people to leave their unions. Some unions have ignored or delayed requests or told employees they can leave — but they still have to pay agency fees. Many ongoing, related lawsuits deal with this issue.

The unions also realize that a key to maintaining a hold on their members is to boost a sense of solidarity. The recently concluded teachers’ strike in Los Angeles is a good example. The final deal is not arguably much better for teachers than what the school district previously proposed, but it bolstered a sense of tribal loyalty. Janus backers believed that the decision would reduce the unions’ ability to focus so heavily on politics. In the short term, however, we might actually see more such political activism as unions try to remain relevant.

Janus was a great decision because workers no longer would be forced to subsidize the labor-union agenda, but it will take time before we see the full effect on union budgets and power. However, it is appalling the lengths to which the California Legislature has gone to undermine the Supreme Court and re-jigger the system on behalf of one powerful interest group. This pushback was expected. Groups that always get more are not about to willingly settle for less.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org. Follow him on Twitter: @StevenGreenhut.

Steven Greenhut
Steven Greenhut
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Steven Greenhut is a senior fellow and Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.
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