(By Stan Greer, RealClear Wire) Five years ago this summer, the U.S. Supreme Court decided that government employers across the country may not cut deals with Big Labor officials to fire civil servants for refusing to pay dues or fees to a union they don’t want, and never asked for.
The ruling that government-sector forced union dues and fees violate the First and Fourteenth Amendments came in Janus v. American Federation of State, County and Municipal Employees Council 31, a case argued and won free of charge on behalf of independent-minded Illinois civil servant Mark Janus by then-National Right to Work Legal Defense Foundation staff attorney Bill Messenger. (This spring, Messenger became the Foundation’s vice president and legal director.)
In addition to Right to Work Foundation attorneys, attorneys for the Winston & Strawn law firm and the nonprofit Liberty Justice Center in Chicago furnished Janus with free legal aid.
At the time Janus was announced, 25 states already had Right to Work laws on the books prohibiting compulsory financial support for all government unions. Moreover, two other pro-Right to Work statutes, respectively signed into law in 2011 and 2012 in Wisconsin and Michigan, protected most kinds of public employees from being fired for refusal to bankroll a union, but made certain exceptions.
Nevertheless, as of the 2017 calendar year the overwhelming majority of America’s nearly seven million unionized state and local public employees still resided in jurisdictions without Right to Work protections.
In the months prior to the Supreme Court’s June 27, 2018, release of its Janus opinion, some Organized Labor observers recognized that a pro-free speech decision could potentially mean an ongoing annual loss of hundreds of millions or even billions of dollars in coerced union dues and fees for government union bosses.
To avoid major financial setbacks, Big Labor knew it would have to persuade, by hook or by crook, vast numbers of workers to support unions voluntarily who, before Janus, were only forking over union dues or fees because they had to in order to keep their jobs.
Assessing just how successful or unsuccessful union bosses have been in stemming their losses of dues and fee payers and revenue since 2018 is not easy for several reasons. Unlike private-sector unions with annual revenues exceeding $250,000, government unions with no private-sector members do not have to file annual LM-2 forms reporting their membership totals and revenue sources.
Even among the government unions that do have at least a handful of private-sector members and consequently must file LM-2s, there is no requirement to use consistent criteria from year to year regarding who constitutes an “active member” of the organization. In some years, retirees and affiliated members (whose dues assessments are virtually always far lower than those of unionized employees who are still collecting paychecks) may be counted as “active members.” In other years, they may not be.
Fortunately, there is a resource that is far superior to LM-2 forms for assessing the impact of Janus on government union membership. State and local government payroll departments in all 50 states record how many employees are subject to “exclusive” union representation during any given pay period, and how many are having union dues withheld from their paychecks.
Public employee payroll records are not published, but interested persons may obtain them by filing freedom-of-information requests under state government transparency laws. And over the course of the five years since Janus, the Midland, Mich.-based Mackinac Center for Public Policy has systematically submitted FOIA requests to public employers in every state significantly affected by Janus to ascertain how many public employees have successfully exercised their constitutional right to opt out of union financial support.
The data the MCPP has been able to obtain covers most of the roughly 5.6 million “public workers employed in unionized workplaces” just prior to Janus in the states the group has been tracking.
According to a recently-published summary of the group’s findings by MCPP Vice President Jarrett Skorup, just before Janus there were 3.109 million people paying union dues or fees in the public entities included in its survey. In contrast, the most recent available data show there are just 2.563 million union dues payers employed by the same public employers. Meanwhile, the number of workers subject to union contracts covered in the survey increased by roughly 184,000.
Based on the large sample for which it was able to obtain data, the MCPP estimates that there are roughly 1.2 million fewer actively employed civil servants bankrolling a government union today than there would be had the Janus case never made it to the Supreme Court, or had the court ruled the other way.
While annual union dues assessments per worker vary widely and there is no easy way to estimate what the average for public employees nationwide is, if one assumes it is $600, as the MCPP very conservatively does, that means Janus is now costing government unions roughly $720 million in revenue every year, and that number is likely to grow.
Why would a public servant choose not to support financially the union that wields monopoly power to deal directly with his or her employer on matters of pay, benefits, and work rules, once the employee has a free choice about that? No two independent-minded employees would offer exactly the same answer, but the answers commonly fall into one of a few categories.
Many public employees have solid grounds for believing that Big Labor work rules hinder them from performing their jobs to the best of their ability. For example, as Success Academy Charter Schools founder and CEO Eve Moscowitz explained in a June commentary for the Wall Street Journal, teacher union bosses in the New York City area have for many years successfully blocked the introduction in the schools they control of reading programs that require a wide range of educators, from assistant principals to art instructors, to help kids learn to read.
Even as the Success Academy has since 2006 demonstrated that poor and minority schoolchildren can outperform the New York State average for all schoolchildren in reading and other key subject areas when educational employees of all types work together to help them learn to read, United Federation of Teachers (UFT/AFT) union bosses have made it impossible for district public schools to adopt a similar or identical program.
That’s a key reason why, as Moscowitz reported, “only 12% of black fourth graders and 18% of Hispanic fourth graders” are proficient readers, according to National Assessment of Educational Progress test scores that were made public for the first time last month.
Many other public employees may refuse to bankroll a union because union officials refuse to stand up for rights that are important to the employees. A case filed this May in the Rhode Island Superior Court by three teachers who were fired for exercising their religious freedom not to receive a COVID-19 vaccine is a good illustration.
Whatever one thinks of mandatory vaccines generally, there was never a remotely plausible case for forcing public educators to get a COVID-19 vaccine to stay on the job. The fact is, there was never any solid evidence that any available vaccine prevents the transmission of COVID-19 from person to person. On the other hand, by late summer 2020 there was already compelling evidence that COVID-19 poses very little to risk to the health of school-aged children, and teachers are not at elevated risk of falling severely ill.
At the time they invoked the freedom-of-religion guarantees in the First Amendment as the grounds for their refusal to get the COVID-19 vaccine, Rhode Island teachers Brittany DiOrio, Stephanie Hines, and Kerri Thurber were all dues-paying members of the Barrington Education Association union, its statewide parent, and the National Education Association union.
Yet teacher union bosses who relentlessly boast about how they supposedly defend the interests of members and nonmembers alike refused to lift a finger to help them. The only reason they were ultimately able to get fully reinstated and receive back pay is because of a settlement won on their behalf by a private attorney they had engaged.
The most plausible explanation for why teacher union bosses did not hesitate to throw DiOrio, Hines, and Thurber under the bus is that, post-Janus, cultivating a sense of hysteria about COVID-19 has been one of AFT and NEA union bosses’ most effective ways of securing new sources of revenue to counterbalance the financial losses they are suffering as more and more educators cut off support for their organizations.
Most significantly, union bosses were able to leverage unscientific school lockdowns that continued throughout most of the 2020-2021 academic year to rake in a total of roughly $200 billion in federal “stimulus” money. This cash was funneled directly and indirectly to government school districts as part of the Biden “American Rescue Plan” scheme rammed through Congress in March 2021.
The fact that top teacher union officials like the AFT’s Randi Weingarten were able to exploit the ample legal monopoly-bargaining privileges still granted by state politicians to pull off this unprecedented coup shows that much more remains to be done to check the still-inordinate clout of Big Labor.
