Janus hasn’t stopped unions from wielding power over school closures

Pandemic-induced school closures underscored the conflict of interest between teacher unions and students. Strong union districts had less in-person instruction, which hit minority communities in urban centers especially hard. The power to determine the mode of instruction belies the notion that the U.S. Supreme Court put public-sector unions on a road to extinction with its 2018 decision in Janus v. AFSCME.

The Janus decision undoubtedly dented the power of such unions by declaring unconstitutional the collection of agency fees from workers who refuse to join their local union but are still represented by it. But the impact of the court’s decision has been blunted by new state laws to boost the unions’ fortunes. And a multiplicity of lawsuits seeking to extend the logic of Janus in state and local government were largely rejected by the federal courts, including the Supreme Court.

After a decade of significant change in the legal and political landscape for America’s public-employee unions, we now appear to be reaching a new equilibrium. That equilibrium has four parts.

First, public-sector unions lost agency fee revenues, dealing them a significant financial blow. By one estimate, New York State’s public-sector unions, which prior to Janus collected nearly $1 billion a year in dues and fees, have lost almost $100 million in annual agency fee money. 

Second, many strong-union states, including New York, California, Maryland and Washington, adopted laws to encourage union organizing efforts. These laws provide unions with existing employees’ contact information and require new hires to meet with union representatives during work time so that the unions can press their case for membership. Virginia in 2020 even passed a law — which will take effect May 1 — that permits local governing bodies to engage in collective bargaining for the first time in the state’s history.

Third, the federal courts have ruled against plaintiffs seeking to extend the logic of Janus. Some sought to eliminate “exclusive representation” — legal rules requiring that only a single union represent all workers in negotiations with management — in state and local government. Others sought to recoup the now unconstitutional agency fees paid by public employees who were not union members but were compelled to pay them before Janus. The last group challenged state laws that allow public employees to exit the union and/or stop paying union dues only at specific times of the year.

Fourth, right-to-work states in the South and the West largely have left in place their existing policies concerning public-sector collective bargaining. A few states — most notably, Alaska, Indiana and Texas — have taken administrative steps to inform public employees of their rights under Janus and to ensure that there is evidence that employees of the state have agreed to infringements on their free-speech rights by joining the union. 

Where should reformers go from here? There are three paths to unions to improve government performance, increase transparency, and ensure that public workers’ genuine preferences are better gauged. Such steps would have the added benefit of rightsizing the political power of public-sector unions.

One reform would be to enact legislation requiring more regular recertification elections — say, every five or 10 years. That means asking workers on the job today whether they really want union representation. In most cases across the country, there was a single vote decades ago on the question of whether to unionize. Few, if any, current workers have been asked if they want union representation or representation by the particular union in place. It was simply a reality when they joined the public workforce. Asking their view would give greater meaning to workplace democracy, especially since nonunion members cannot vote on union leaders, strikes or contracts.

Another reform would be to require greater transparency in the form of reporting requirements for public unions, similar to what is required of private-sector unions at the federal level. Ohio provides a model at the state level. Such reporting would provide greater clarity for workers, employers and the public. Workers would be able to better assess what the unions to which they belong are doing, employers would know the representativeness of the unions with which they are negotiating, and the public would know what their tax dollars are underwriting.

A final reform would be policies to inform workers and employers of their rights under Janus. Current workers and new hires could then make informed decisions about whether they want to be union members — and, if not, what they need to do to opt out of membership. Guidance for employers, so that they can understand what they can and cannot do regarding union membership, will assist them in developing onboarding processes for hires. 

Such steps will slowly recalibrate union membership to the point where it more accurately approximates workers’ actual preferences, and would thereby reduce the inevitable conflicts of interest between public employee unions and the public. 

Daniel DiSalvo is a senior fellow at the Manhattan Institute and a professor of political science at the City College of New York (CUNY).