After the U.S. Supreme Court’s Janus ruling that public employees cannot be compelled to pay union fees, there’s been considerable discussion about the impact of the decision on public employee unions. American Enterprise Institute scholars Nat Malkus and Brendan Bell consider the effects on teachers’ unions in an article published in The Hill.
Markus and Bell first address how the decision affects employees’ cost calculations.
The primary reason for anticipated membership declines is that eliminating agency fees changes the real cost of union membership. The petitioner for instance, Mark Janus, could have paid full dues, but choosing not to join the union still had to pay 78 percent of dues as an agency fee. For Janus, the real cost of membership was the difference: 22 percent of dues. Without agency fees, the choice is either 100 percent or nothing, nearly quadrupling the real cost of membership. Agency fees didn’t drive Janus to join the union, but many members who joined under this marginal cost of membership could now defect.
Again, this was expected and teachers’ unions — which collectively may be the nation’s most powerful public sector interest group — have budgeted for losses. The National Education Association’s (NEA) 2017–18 budget anticipates losing 10 percent of members, while the United Federation of Teachers, the AFT’s New York City affiliate, expects losses between 20–30 percent.
They then turn their attention to an unanticipated element in the decision, the opt-in requirement.
But one small but pivotal aspect of the ruling was not expected: that public employees must now opt-in, rather than opt-out of the union. Arguing that compelled fees violate workers’ First Amendment rights, and joining a union is thus a waiver of First Amendment rights, the opinion demands that teachers declaratively opt-in to the union. In Alito’s words, the union cannot collect any fee “unless the employee affirmatively consents to pay.” This seemingly small addition will exacerbate union declines, and make it all the harder for unions to fight attrition…
Not coincidentally, Janus paves the way for another case on this very issue, Yohn v. CTA, which is waiting in the wings. Ryan Yohn and seven other California teachers challenge the California Teachers Association’s (CTA) burdensome opt-out restrictions, the very types of measures some unions have pushed as an answer to Janus.
Route Fifty has more on the Yohn case.
In California, seven current or former teachers filed a lawsuit earlier this week in federal court seeking fee refunds. They are asking the court to certify the suit as a class action…
State and national union organizations are among those the lawsuit lists as defendants. They include the California Teachers Association, the American Federation of Teachers and the National Education Association, which says it has about 3 million members nationwide.
“Everybody knows from the time that they’re in kindergarten that, when somebody has something that doesn’t belong to them, they have to give it back,” John Bursch, one of the attorneys representing the teachers in the lawsuit, said by phone on Friday.
“We’re simply asking that the unions return the money which rightfully belongs to the teachers,” he added.
This is far from being a settled issue.