Janus v. AFSCME: What now?

by Ken Girardin |  | Rochester Beacon

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, a 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.