Paul Toner: Will Post-Janus Unions Go Beyond Traditional Models?
April 20, 2018

This commentary by Paul Toner, executive director of Teach Plus Massachusetts, was originally published in The Line.

In February, the Supreme Court of the United States heard arguments in a case entitled Janus v. AFSCME Council 31, concerning a public sector employee who is opposed to paying agency fees or “fair share” to the union responsible for negotiating his collective bargaining agreement.

Whether you are an educator in a union, or not, what happens to Mark Janus will be important to you, to unions and to the future of public education.

Mark Janus, a child support specialist for the Illinois Department of Healthcare and Family Services, is not arguing that the fees he pays to his union are onerous, nor that he can better negotiate a contract alone. Janus is arguing that collective bargaining with any public employer is a political act and that mandatory fees are an infringement on his First Amendment rights. “The union voice is not my voice. The union’s fight is not my fight,” he has written. He is opposed to union-backed politicians and positions that he believes have made Illinois’ fiscal crisis worse.

For anyone who would see this argument as an outlier, think again. This is one of many cases that have been working their way to the Supreme Court and given the current makeup of the court, Janus is likely to win.

In a similar 2016 case, Friedrichs v. California Teachers Association, there was a 4-4 split decision due to the death of Justice Anton Scalia. Now that conservative Neil Gorsuch has taken his place, most observers expect a 5-4 vote against the union.

The Only Real Certainty is Change

In all such cases, we as a society are tempted to immediately pronounce winners and losers but the only real certainty here is change.

Currently, agency fees are slightly less than full union dues. They are determined by subtracting the cost of political expenditures (campaigning, political donations, etc.) from the cost of full membership. Agency fee payers get the protections of the collective bargaining agreement but cannot engage in most other union activities or access union resources.

The difference between an agency fee and full union dues can be substantial, often several hundred dollars a year. But if Janus wins, the choice for educators will be between paying full union dues, which can be a thousand dollars or more, or nothing at all. The potential for new educators with low pay and no union history, or educators with political views differing from the unions, to opt out of membership is a real threat. Even under the status quo, a U.S. Department of Education survey found that between the years 1999-2000 to 2015-2016, union participation by public school teachers had already dropped almost 10 percent.

Some observers believe eliminating agency fees would be catastrophic, rapidly speeding union decline. Such rapid decline, however, is unlikely but the longer-term threat is real.

Unions that have relied on agency fees as leverage to encourage membership will need to demonstrate their value and worth to educators who now have a clear choice.

Unions have been preparing for this for several years and organizers are conducting member outreach hoping to solidify membership before an adverse decision this spring.

To union critics, it will be seen as a victory. They cite examples of corrupt union leaders, undue political influence, obstruction to reasonable reforms and the support of political candidates whose views are in direct conflict with many of their members as reasons to support Janus.

But this latter view ignores the fact that many school district administrators prefer the efficiency of collective bargaining and dealing with one bargaining representative. Unions and collective bargaining have brought stability to the workplace. Where labor management relationships are strong real reforms can be made.

A Return to Traditional Union Militancy?

Ironically almost concurrent with the Supreme Court deliberation, approximately 20,000 teachers in West Virginia went on strike for nine days, seeking higher wages and the stabilization of health insurance costs. This is in a so-called “right to work” state with no collective bargaining rights and no right to strike.

It was an old-fashioned job action, with loud, raucous marches on the state capitol in Charleston, nightly national news coverage and impassioned speeches on behalf of West Virginia educators who rank near the bottom in annual compensation.

That it occurred in West Virginia is emblematic of the dichotomy in how we feel about unions and their activities. The state’s history is filled with examples of job actions, most notably by coal miners. Most of us can credit unions for their historical role in establishing worker safety, child labor laws, minimum wages, reasonable working schedules and a host of other benefits, many of those directly benefitting students. West Virginia is also a state where many union members of all types are unlikely to support the progressive Democratic candidates and issues often supported by unions. If you were an employee like Mark Janus, you would argue that the financial footing in West Virginia is hardly less precarious than it is in Illinois and the union violated your rights.

It is notable that in Roman mythology Janus is seen as the god of transitions, for we are almost certainly entering a phase of rapid transition.

The potential for the weakening of current union structures may very well delight critics but cause more labor strife, not less. It may lead to more, different types of unions or associations, especially in education.

Many in the union movement see a return to traditional union militancy as the best strategy for maintaining membership and power. West Virginia educators achieved much of what they were after. Many union members consider the outcome a victory. It is already creating talk of similar actions by teachers in Oklahoma, Arizona and Kentucky.

In states and districts where pay is low and benefits few, educators want their unions to fight to improve their status. Post-Janus, however, teacher unions will need to go beyond the traditional industrial union model. Many educators also want their union to lead their profession and to concentrate on improving our public schools through actions and agreements that allow teachers to best serve and prepare their students for future success. This will require flexibility and collaborative leadership by labor and management in the workplace and government.

Much of that work will be, and must be, political. Increasingly, supporting public education at all is a political choice. Unions will need to be strong advocates for more substantial school funding, improving teacher preparation, school safety, immigration reform and many other efforts that support our most at risk families.

Some may disagree, but as educators, this is where we must engage respectfully and act collectively on behalf of those we serve – public school students.


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Paul Toner

Paul is Teach Plus Massachusetts' Executive Director

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