The Supreme Court’s 2018 Janus v. AFSCME ruling, expected to be a major blow to public sector unions, has set off a battle at the state level between government unions and conservative groups over for workers’ hearts and minds.
The ruling, which held that public sector workers could not be forced to join or otherwise financially support a union as a condition of employment, was expected to drain the labor movement of revenues as workers decided to opt-out of contributing, thereby hurting the Democratic Party and the political Left. So far, unions have managed to hold on to their members.
They’ve been able to do so in part by working with friendly state legislatures to limit workers’ ability to exercise the rights they gained under Janus. Conservative state-level groups are trying to reverse those measures, often using tactics usually associated with unions, such as going door-to-door to talk to people.
“Many states have enacted laws that back up the disinformation union officials give workers regarding Janus,” Patrick Semmens, vice president of the National Right to Work Foundation, told the Washington Examiner.
Legislation to counter the Janus ruling has been introduced or passed in California, Washington, New York, Delaware, Pennsylvania, Maryland, New Jersey, Connecticut, Rhode Island and Massachusetts. Lawsuits challenging the legislation or promoting workers’ rights under Janus have been filed in Oregon, Minnesota, Illinois, Ohio, Pennsylvania and Maine.
Washington, for example, in April adopted a law that allows automatic dues deduction from public sector workers’ paychecks, limits circumstances in which workers can end the deductions, and limits the unions’ legal liability for taking dues without permission. Legislation currently pending in the Massachusetts state House would do all of that, plus give union access to state facilities to organize and require workers to meet with them, among other provisions.
California passed a law anticipating Janus in 2017 that prohibits state agencies from deterring workers from joining unions, thus making it difficult to inform workers of their rights to opt out.
A bill currently pending in the Connecticut general assembly would require that the state provide unions with public worker contact information, access to public buildings, require workers to attend union-sponsored orientations, make dues deductions automatic, and require that the state employers get the unions to sign off first before workers can by excluded from paying dues.
New York Gov. Andrew Cuomo, a Democrat, responded to Janus last year by signing an executive order prohibiting the state from disclosing public sector worker contact information to private non-union groups. The state’s official Janus guidance says that unions don’t have to obtain new authorization for dues deductions or even prove that worker is a union member, instead putting the responsibility solely on the worker.
Thanks to such rules, it is likely that many public sector workers are unaware of their Janus rights. A June poll of 1,000 teachers conducted by the American Association of Educators, a nonprofit, non-union group, found that 77% of teachers weren’t even aware of the Janus decision, and that of those who had heard of it, a majority, 52%, were unaware of what the ruling meant.
All this has created a lot of work for groups like the Freedom Foundation, which began as a nonprofit think tank but now devotes all of its efforts to reaching out to public sector workers in Washington, Oregon and California. It has a $5 million budget and most of that goes into Janus-related efforts. It’s borrowing a page from the unions, too.
“We set up a process of canvassing teams that would be outside city or country government buildings to let workers know before they went in for their orientation that they have rights and that they didn’t have to sign anything today,” said Ashley Varner, the foundation’s vice president of communications. “We did start making door-to-door home visits to let them know you don’t have to be a member of a union.” Varner estimates that 50,000 workers have opted out in California, Washington, and Oregon as result if their efforts.
The foundation has also filed more than a dozen lawsuits in the three states to defend workers who claim their Janus rights are being violated. National Right To Work’s legal defense foundation has about two dozen such cases ongoing.
The Michigan-based nonprofit Mackinac Center for Public Policy maintains the website MyPayMySay.com, which provides public workers with a state-by-state and step-by-step guide on how to opt out of paying dues, such as model letters.
“We spend a lot of money marketing the website,” said Mackinac spokesman Jarrett Skorup, who declined to give an exact figure. “We’ve had hundreds of thousands of visitors to the website and we believe tens of thousands have taken actions to opt out of their union.”
Mark Janus, the plaintiff in the Supreme Court case and now a fellow with the Illinois Policy Institute, has filed suit in that state against AFSCME seeking retroactive repayment of two years of union fees. Janus spends much of his time traveling and talking about the case. While sometimes union members are critical, he rarely gets hostile reactions, and some members are thankful, he told the Washington Examiner.
For now, public sector unions appear to have taken little damage, but cracks are showing.
For example, AFSCME, the defendant in the Janus case, reported in March Labor Department filings that its membership was 1.3 million, up by 27,000 from last year. The federal data shows, however, that union’s revenue fell in the same year, by $1.5 million to $197 million. Membership accounted for $181 million of that revenue, a figure down $4.5 million from the previous year. Thus, dues are declining despite a rise in members, suggesting that AFSCME may be having a hard time getting payments from all of them.
AFSCME deputy general counsel Teague Paterson told the House Education and Labor Committee in June that membership has held up because workers see need for a union for economic security. “Our workers know that their union is their union.”
Federal filings for AFSCME Council 31, the defendant in the Janus case, indicate more than 8,000 workers stopped paying in 2018, a 12% decline from the previous year.
Other public sector unions appear to be holding steady. The American Federation of Government Employees reported its membership in March at 333,000 — up about 700 from the previous year. Its dues revenue was $81 million, up $2 million from last year. The Service Employees International Union, which represents public and private sector workers, reported its membership at 1.9 million, down a marginal 1,000 from last year.
“Their tactics may succeed in keeping workers as dues-paying members for a time but they are losing the hearts and minds of public employees who are running up against the practices they’ve instituted,” argues Maxford Nelson, labor policy director of Freedom Foundation.
