The Janus Threat

Sometime in the next few months, the Supreme Court will issue a decision that could have disastrous consequences for our salaries, working conditions, and professional futures. Yes, this sounds dramatic, but as you’ll see, this threat is very real and very serious. You’ll be hearing more about this in the coming weeks/months, and we want to make sure our members understand what’s happening and what is at stake.

In September, the U.S. Supreme Court agreed to hear the Janus v. AFSCME case, in which the plaintiffs argued that compulsory union dues are a violation of first amendment rights. This is essentially the same issue that was brought up two years ago in the Friedrichs v. CTA case, which resulted in a 4-4 decision after the death of Justice Scalia. As such, the lower court decision, which ruled against Friedrichs, was allowed to stand.

Like Friedrichs, the Janus case is attempting to overturn the 1977 Abood v. Detroit BoE decision, which established that workers cannot be made to pay for the political activities of unions, but can be expected to contribute toward the union expenses that benefit them (i.e. collective bargaining).  As a result, current law states that public-sector workers (i.e. teachers, cops, county workers, etc), cannot be compelled to join a union, but since those unions are required to represent ALL workers, anyone who opts not to join must still pay what’s known an agency (or “fair share”) fee to cover the cost of their representation.

The Case
The argument being made in Janus is that ALL public-sector union activities (e.g. negotiation for salaries, working conditions, etc), are matters of public concern and thus should be considered “political.” Therefore, workers should not be compelled to contribute to unions at all, as they may not agree with the public policy implications of union activities.

At first blush, this seems to make sense (isn’t it unconstitutional to require individuals to pay for speech that they might not agree with or to force them to support an organization they would prefer not to?). But the unanimous Abood decision was based on the fact that public-sector unions MUST support all members, and there is a abiding public interest in maintaining labor peace via this system – something that allowing “free riders” would undermine: “[it] is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” 

Oral arguments will be heard on February 26th. A decision could come anytime after that, right up until the end of the term, in June. Some predict that the decision will be issued late, while others have suggested that since most of same arguments were covered just two years ago in Friedrichs, this case will be decided quickly.

A decision in favor of Janus seems to be a certainty; there does not seem to be anyone, anywhere, who predicts a favorable outcome for public sector unions. While I was able to find one writer who is holding out a small bit of hope that John Roberts’ “concern for his legacy on the bench might help preserve the status quo and uphold the Abood precedent,” this is fishing in the air. Roberts voted in favor of Friedrichs and he’s given no indication that he’s changed his thinking.

What it Would Mean
In the very unlikely event that the court rules in favor of AFSCME, then things stay as they are. A pro-Janus decision, however, will mean that public sector unions can no longer compel members to pay agency fees.  This would essentially nationalize the “right-to-work” concept. (if you need a refresher on “right to work,” see this piece from Fortune, or this one from Forbes.)

Data shows that, even after accounting for cost-of-living differences, workers make less in right-to-work states  (NOTE: that’s ALL WORKERS; not just union workers), so at the very least it is reasonable to expect a slowing or even a decline in teacher salaries. There are a lot of unknowns here, but what’s happened in Wisconsin can give a very sobering sense of where things might go.

In 2011, the Wisconsin Legislature passed Act 10, which effectively did to public sector unions in that state what the Janus decision would do nationwide. The results were devastating. In the five years after ACT 10 went into effectthe median salary for teachers decreased by 2.6%. Additionally, median benefits for teachers decreased by around 20%, which mostly means teachers contributing more to health insurance, thus seeing even deeper cuts in take-home pay.

And it isn’t just about salaries. At a recent NYSUT workshop, we were shown a typical Wisconsin teacher contract from before Act 10, and then the current contract from the same district. The first one was what you’d expect – about 60 pages, covering all the usual things (assignments, hours, workload, grievance procedures, etc). The current contract? Two pages, one of which is a signature page and the other mostly boilerplate language. The only actual negotiated item in the contract is for a 1.26% across-the-board salary increase (i.e. no steps). That’s it.  “There is no longer tenure or seniority rights and all school employees work at-will. Wisconsin school employees have no salary schedule; insurance, retirement and leave days are optional to each school board. School district contracts establish wages but are otherwise replaced by an Employee Handbook. Handbooks control work hours; contact, break and prep times; dress codes; required after-school activities and often impose controls on the personal lives of employees.” 

It is almost inconceivable that there will be no impact at all, but it is an open question just how bad it will be, and the primary driver is how many people decide to stop paying union dues altogether.  We know that at least some will.

  • If only one or two people per local decline to pay dues, the impact will be minimal. Those folks will be able to enjoy the benefits of the contract – including the guarantee that their rights will be protected, all while allowing their colleagues to foot the bill.
  • If more than a few people decide to become free-riders, then unions will need to make cuts, scaling back services and reducing their ability to protect and defend their members – endangering the types of victories discussed in the previous post and opening the door to more anti-union lawsuits and legislation.
  • If a substantial number of workers stop contributing, unions will become skeletons of their current selves – likely going down the road that Wisconsin has just traveled. Within a few years, we can expect to be making less in both salary and benefits. If fewer than 50% of workers in any given local are willing to pay their fare share, then that local is subject to de-certification, leaving employees completely at the mercy of the employer.

It may begin with just a handful of people. But on an inter-personal level, individuals who decide to become free-riders will of course try to convince others to do the same. And once a number of people stop contributing, those left holding the bag may begin to question why they’re paying for something that other people aren’t and opt-out themselves.

On a larger scale, there will be active campaigns to convince people to separate from their unions. The Janus lawsuit is being funded by the National Right to Work Foundation and the Liberty Justice Center, which, in turn, are funded by billionaires who have their own agenda – including to “defund and defang” America’s unions

These groups want a return on their investment, which they will only get if workers start abandoning unions. You can rest assured they will make a concerted effort to make that happen. We heard reports that teachers in Wisconsin received letters, calls, flyers on their windshields, and other materials to convince them to leave the union. And of course, social media is the perfect vehicle for spreading misinformation to help turn members against unions.

Given the above, the future looks pretty bleak. But I, for one, am not despairing. Nor are the rest of our SWRTA officers, and neither should you. In the next post, well talk about why there is reason for hope and what we all need to do.

In the meantime, if you have any questions or if there’s anything about this that still isn’t clear, please let us know.

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