In June, the U.S. Supreme Court’s decision in Janus v. AFSCME threatened to hurt public-sector labor unions in states like Minnesota.
In a 5-4 decision, the court ruled that unions covering public sector workers — teachers, firefighters, police and administrators among them — could not charge nonmembers for their services, because doing so violated those nonmembers’ First Amendment rights “by compelling them to subsidize private speech on matters of substantial public concern.”
At the time, headlines proclaimed Janus could kill public sector unions in places like Minnesota by making it possible for workers to benefit from labor unions without paying anything to them, leading some members to drop the union altogether.
But in Minnesota as elsewhere, some public-sector unions have seen their membership increase post-Janus. For now.
Janus was a big deal for unions because it hit on something central to their ability to raise money.
By law, unions are required to represent all workers — regardless of whether they are members — “fairly, in good faith, and without discrimination.” To cover the cost of representing those employees, unions in states like Minnesota had historically been allowed to charge nonmembers a “fair share” fee — in Minnesota, typically 85 percent of the full freight of union membership — for services they provide.
That’s not the case in states with “right-to-work” laws, which still require unions to represent nonmembers, but bans such workers from being required to pay fees. Twenty-eight U.S. states have right-to-work laws, which were first passed in the 1940s and have seen a resurgence in popularity in recent years.
Proponents of right-to-work laws argue requiring nonmembers to pay violates their First Amendment right to free speech. Those against right-to-work laws say such laws allow nonmembers to be free-riders — to benefit from labor unions without paying for them.
Janus was a big deal because it applied right-to-work principles to public-sector unions in states without right-to-work laws. In theory, it allows workers who aren’t sending part of their paycheck to the union to be represented by the union.
That public-sector unions gained membership after Janus wasn’t necessarily the expectation — even for some unions themselves.
The Minnesota Association for Professional Employees (MAPE), which represents state government professional workers has seen a net increase of about 500 members — from about 10,500 to more than 11,000, since Janus, said Ashley Erickson, a spokesperson.
“That was a pleasant surprise. We were definitely prepared – and probably overly prepared — for the worst,” she said.
Unions had been anticipating a ruling like Janus for some time, and have increased their organizing efforts to prepare for it. Recently, it looked as though a similar case, Friedrichs v. California Teachers Association, might be the case that decided these unions couldn’t charge nonmembers to represent them. But soon after the case was argued at the U.S. Supreme Court, Justice Antonin Scalia died. A 4-4 divided court affirmed the lower court’s opinion in a decision considered non-precedent-setting.
Whether it was Friedrichs, Janus, or some other case that would bring such a decision, MAPE had been ramping up membership efforts in recent years. One goal in particular was to bring more new hires into the union.
“The percent of those who joined MAPE within the first six months (of their job) is higher than we’ve ever had before,” Erickson said.
The post-Janus outlook hasn’t been entirely rosy for MAPE: The loss of fee-payer revenue is greater than the revenue from new memberships, Erickson said.
For Education Minnesota, there have been more new memberships than drops post-Janus, said Denise Specht, the union’s president.
“We knew that this was coming,” she said. “It was an opportunity for Education Minnesota to go out and have thousands of conversations face-to-face about what our members liked and valued in their union, what they were looking for … we’re just a better union because of that.”
The full financial effect of Janus won’t be made public until new reports are filed in 2019, but from 2017 to 2018 (most of which was pre-Janus), revenues increased.
In the run-up to Janus, AFSCME Council 5, a branch of the American Federation of State, County and Municipal Employees, reached out to fair-share fee-payers who were not union members, raising awareness of the pending court cases, and making a case for full membership.
“For two years prior to Janus, we were out — we had our staff and our leaders and activists talking to all the fair shares saying ‘this is going to come, what are you going to do?’ and a lot of them said if it comes to it (they’d) become a member,” said Tim Henderson, the associate director of AFSCME Council 5. Fee-paying members don’t have full membership rights — they can’t vote on contracts, for instance.
After Janus eliminated fair-share fees, some former nonmembers realized none of their paycheck was going to AFSCME, “so they started calling up, asking how can I sign up? We had a big influx in the weeks and months where we thought we lost a bunch,” Henderson said.
Data from the Census Bureau’s Current Population Survey show union membership up among both private- and public-sector workers in Minnesota in 2017 — before the Janus ruling. Compiled from a small sample, those numbers have a high margin of error and aren’t terribly reliable. But given what unions are saying, they do seem to reflect an actual increase, said Barry Hirsch, a professor at Georgia State University who helped compile the data for the website Unionstats. That could be a result of unions’ efforts to organize before a case like Janus came down.
In Minnesota, CPS data show private unions’ membership increasing from 8.3 percent of private-sector employees in 2016 to 9.2 percent in 2017, and public unions’ membership increasing from 46 percent to 54 percent.
Short versus long term
One way or the other, the effects of Janus might not be felt immediately, Hirsh said. In workplaces that are heavily unionized, there’s a lot of peer pressure to join — and stay in — the union.
“There’s a good bit of peer pressure within workplaces, so as long as most workers strongly support or support the union, that puts an implicit pressure on other workers. I think what the unions worry about is if large numbers were starting to give up membership,” he said. “It would have to be some gradual undermining.”
In the short term, public-sector union membership may be up in the wake of Janus, but in the long term, these organizations could well see their membership drop, said Stephen Befort, a professor at the University of Minnesota Law School.
And Janus isn’t all. Cases percolating through the court system seek to test the legal boundaries of unions in other ways.
One big concern for unions is lawsuits coming up through the courts that target their right to exclusively represent employees, which opponents argue violates the First Amendment right to freedom of association.
If exclusive representation were struck down, a workplace could have multiple unions, or employees with a grievance could seek outside counsel to represent them.
“The theory there is that once the majority of people vote for a union, it represents everybody, even those who did not vote for the union,” Befort said.