Law & Courts

To Stem Likely Membership Losses, Teachers’ Unions Play Offense

By Madeline Will — June 14, 2018 7 min read
The U.S. Supreme Court will issue a decision soon in the Janus v. American Federation of State, County, and Municipal Employees Council 31 case. At stake are the so-called “agency” or “fair share” fees that public-employee unions in 22 states charge workers who are not union members but still reap the benefits of collective bargaining.

When teachers are first hired, they have paperwork to fill out and meetings to attend. This fall, new hires in a growing number of states can add another to-do to their lists: meet with a teachers’ union representative.

At a time when unions are bracing for a potential blow from the U.S. Supreme Court, Democratic lawmakers in about a half-dozen states have introduced or passed legislation that aims to give public-employee unions better access to potential members.

The Supreme Court is expected to issue a decision in the Janus v. American Federation of State, County, and Municipal Employees Council 31 case any day now. At stake are the so-called “agency” or “fair share” fees that public-employee unions in 22 states charge workers who are not union members but still reap the benefits of collective bargaining.

The justices are widely expected by court watchers to rule against the unions and effectively make the public sector a right-to-work zone. That means teachers and other public employees could choose whether they want to belong to their unions with no strings attached. Currently, many who pay agency fees decide to simply kick in the extra dollars to become full members.

Analysts and union officials themselves expect that unions will lose both members and revenue dollars if the justices rule the fees are unlawful. Pro-union legislation that has recently passed in several states, including California, Maryland, New Jersey, New York, and Washington state, could help mitigate the effects, union officials say.

Unions have pushed for bills that, among other measures, would: put restrictions on the length of time teachers have to opt out of paying dues, limit the number of services unions have to provide to nonmembers, and give unions access to teachers’ contact information. Perhaps the most common tack in this wave of legislation is requiring new teachers to meet with their union representatives within a month of being hired.

Other Labor-Friendly Bills


Union members now have a 30-day window before the anniversary of when they first authorized a payroll deduction to stop paying union dues. They must provide written notification to their union representative within that time period. The governor signed the bill into law in April.

Another bill introduced this spring would have removed economic incentives for employees to “free ride”—meaning to benefit from the union’s collective bargaining without paying. The bill would have required employers to deduct an amount equivalent to union fees and donate it to a charity specified by the employee. That bill died in committee.

A bill would require employees who choose not to join a union and who do not pay an “agency” fee (assuming the Supreme Court decision knocks down those fees) to reimburse the union for the cost of representing them in a grievance proceeding.

This bill has been stalled in a Senate committee since January.

Public employers must let unions meet with new employees for at least 30 minutes during orientation or at another time within 90 days of the employee’s start date.

Unions can deduct dues and fees from public employees’ paychecks without their authorization. Instead, employees who don’t want to join or pay dues to the union must opt out in writing.

Both measures were signed into law by the governor this year.

Source: Education Week

“[We expected that] over the course of the next several months and years, an onslaught of what we expect to be anti-union propaganda would be making its way into our state,” said Sean Johnson, the director of legislative affairs for the Maryland State Education Association.

The state legislature there passed a bill that requires new teachers to meet with a union representative at orientation and requires school districts to make sure the union has up-to-date contact information for all teachers on a regular basis. It became law in April without the signature of the governor, a Republican.

Johnson said he hopes the new law will help stem membership losses that could come from an adverse Janus decision.

“We wanted to make sure we are in a place to really position ourselves to talk about collective action and the power of collective voice [to new teachers],” he said. “I think it is a position of strength. ... The best defense for us is a good offense.”

Vincent Vernuccio, a senior fellow with the Mackinac Center for Public Policy, a free-market think tank, called those meetings with new employees “captive-audience meetings.” He said they are part of a broader strategy in which unions are trying to curtail worker choice—and some of those measures could be challenged in court, Vernuccio added.

“Unions are trying to do whatever they can to circumvent a case that hasn’t even been decided yet in order to trap public employees into paying them,” he asserted.

Legislative Safeguards

The bulk of the labor-friendly legislation was introduced this spring. While California unions were given mandatory access to new teacher orientations last year, legislation introduced this year would give teachers’ unions five days to review a teacher’s request to revoke the payroll-deduction authorization of union dues.

That measure would give unions a chance to try to retain members. That bill has passed the state House and is awaiting a vote in the Senate.

See Also: Janus, the Supreme Court, and Teachers’ Unions: Complete Coverage of the Landmark Case

In New York, the governor worked with unions to enact measures that limit the number of services public-sector unions must provide to workers who choose not to join. Although unions still must include nonmembers in collective bargaining, they can provide certain legal and job-related services and benefits to members only. Another measure requires public employers to notify the union within 30 days of an employee’s hire and share the employee’s contact information, as well as give the union an opportunity to meet with the new employee.

When Democratic Gov. Andrew Cuomo signed the legislation—which he deemed the “Janus bill”—in April, he said it was “the first step of the resistance.”

The new law is an attempt at clarifying unions’ responsibilities if the Janus decision goes against them, said Michael Mulgrew, the president of the United Federation of Teachers, which represents New York City teachers.

“The same people who funded the Janus case would have funded a litany of litigation about every single one of the gray areas that needed to be cleared up,” he said.

Now, he said, the union has fewer responsibilities to represent nonmembers in legal proceedings and doesn’t have to include nonmembers in the UFT’s trainings and professional development.

And having more access to new hires will help the UFT pitch their services to teachers before they are swayed by anti-union messaging, Mulgrew said.

“We put this in very simple arguments for our [teachers]: ‘These folks are going to tell you everything in the world about why you shouldn’t [join] unions, so they can destroy your livelihood and profession,’ ” he said.

Meanwhile, in New Jersey, Democratic Gov. Phil Murphy signed a bill in May that enacted multiple protections for unions. The Workplace Democracy Enhancement Act gives unions the right to meet with new employees for at least a half hour within 30 days of being hired. Public employers are now required to give contact information for all employees—including home addresses and personal cellphone numbers—to unions on a regular basis. Under the new law, if a public employer encourages employees to drop out of the union, it must reimburse the union for those lost dues.

The new law also changes the time period in which employees who have decided to drop out of the union can revoke the authorization of the payroll deduction of union fees. Previously, there was a statutory opt-out window. Now, teachers must opt out of paying dues during the 10 days each year that follow the annual anniversary of their hire.

“Honestly, I see [this law as] helping public employees in New Jersey,” said Steven Baker, a spokesman for the New Jersey Education Association. “I think that’s the important outcome of this: preserving the ability of the union to communicate with members, preserving the ability of the union to advocate for members.”

More Litigation Down the Road?

Critics, however, say the New Jersey and New York laws are particularly egregious and could be challenged in court.

“The Supreme Court may have to take up another case ... on the New Jersey or New York laws to say, ‘Yes, we really mean it; you can’t force people to pay for politics they disagree with, and you can’t trap them in [the union],’ ” said Vernuccio of the Mackinac Center. “I think it’s ripe for litigation in the future.”

Already, a lawsuit is waiting in the wings of the Janus decision that would challenge opt-out windows. Yohn v. California Teachers Association argues that teachers should have to affirmatively opt into the union, not opt out. In California, teachers who don’t want to be part of the union must send an annual letter to the CTA during a time-limited window.

Terence Pell, the president of the Center for Individual Rights, the libertarian law firm that filed the Yohn case, said the Supreme Court justices may weigh in on the opt-out issue in Janus, which could reduce the need for future litigation.

But if not, he said, Yohn would challenge rules that make it unduly cumbersome to leave the union—like the new law in New Jersey.

“It’s not a simple matter of resigning from the union,” Pell said. “You leave the union, let’s say in March, and then you have to wait for a window in September to revoke the authorization of dues. If you miss that window, you have to pay for [another] year.”

As the Janus decision approaches, unions are facing a “fork in the road,” Pell said. They could make themselves more responsive and accountable to their members, which some analysts predict will happen. Or, he said, unions can rely on friendly legislators for protection.

“Running to the state legislature to get favorable legislation to make it easier for the unions to mandate membership is really doubling down on the root problem here, which is that unions are too close to the government and not close enough to the members they represent,” Pell said. “This is a further example of basic misalignment with the unions.”

A version of this article appeared in the June 20, 2018 edition of Education Week as Teachers’ Unions Go on Offensive to Stem Losses


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