Public Unions

Unions Change Their Tune on Janus Supreme Court Ruling

It was the end of the world...until it wasn't.


The U.S. Supreme Court is attacking working people by destroying public-sector unions. That's the gist of the argument that the union movement has made as the court considered Janus v. the American Federation of State, Municipal and County Employees (AFSCME). Actually, their arguments were far more overheated, both before and after the high court ruled in June that government employees may not be forced to pay dues to unions—even for collective-bargaining purposes.

"The Janus case is a blatantly political and well-funded plot to use the highest court in the land to further rig the economic rules against everyday working people," intoned a typical statement last year from the American Federation of Teachers, in expectation of the decision. "The billionaire CEOs and corporate interests behind this case, and the politicians who do their bidding, have teamed up to deliver yet another attack on working people."

It wasn't only union officials who made apocalyptic predictions. In her dissent, Justice Elena Kagan argued that the decision "will have large-scale consequences." She predicted that "public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways."

Three months after the ruling, however, union supporters have largely changed their tune. In fact, the pro-union website argued this week that "Strangely enough, these kinds of apocalyptic predictions have given way to claims that the ruling has had little or no effect on union membership at all." Mike Antonucci concluded that Kagan's warnings may have been wrong. Instead of "wreaking havoc" on contractual relationships dealing with government workers, the main changes have come from union-friendly legislatures that are passing laws designed to mitigate the effects of the ruling. "If governments are designing new ways to manage their workforces, they are keeping it well hidden from view," he argued.

Local news reports confirm that view. As the Toledo Blade reported in its coverage of a union rally shortly after the court's decision, "Lucas County union leaders said the Supreme Court's major blow to organized labor would likely have little impact on local unions' financial footing." In an article on September 3, the Boston Business Journal concluded that "two months later, the decision does not appear to have had devastating consequences for Massachusetts unions."

This appears to be consistent with what we're seeing nationwide. KPBS reported on September 7 that teacher union membership in San Diego has remained steady since the ruling, with only 10 out of 6,000 teachers ending their union membership since Janus.

An article in the Duluth (Minn.) News Tribune on September 2 also put some numbers behind its reporting: In Minnesota, nearly all the roughly 196,000 public sector employees who are covered by a union contract were members of their respective unions in 2017, according to data compiled by researchers Barry Hirsch of Georgia State University and David Macpherson of Trinity University. So when the Supreme Court decision that prevents public sector unions from collecting 'fair share fees' from nonmembers took effect in June, just 2,000 Minnesota employees saw their contract-bargaining contributions end." That's a mere 1 percent reduction in dues-paying, which explains the article's conclusion that "If the Janus decision was a car crash for public-sector unions, on first inspection it looks like it resulted in a minor dent, at least locally."

Shortly after the decision, the education website Chalkbeat published an article with the headline: "Colorado teachers unions will feel a limited impact from the Supreme Court's Janus decision." It quoted a union president who noted that the union's "biggest concern is not the financial side of things but the ideological side of things, that this is an attack on workers and workers' families and workers' ability to come together and have a collective voice." A union official described the ruling as beneficial because "we have to go out to individual educators and explain to them the benefits of belonging."

That gets to the heart of the issue. Unions understandably opposed the ruling for ideological reasons, but the savviest union leadership has long understood that it can actually strengthen their efforts by forcing them to more closely listen to the needs of their membership. This isn't particularly surprising. Competition tends to help, rather than hurt, all organizations.

In a January article for the California Policy Center, I wrote, "Even many union officials and their staunchest allies recognize that eliminating mandatory dues could be a boon to unions. It's counterintuitive, but forcing unions to compete for members rather than take their funding for granted will put an end to the complacency that has dogged these noncompetitive institutions." I've also repeatedly warned critics of public-sector unions not to expect the decision to be the death knell for these unions. It's just the beginning of a long process of encouraging unions to focus more on providing benefits rather than on using the political system to achieve their ends.

Furthermore, there appear to be some workarounds that allow liberal Legislatures to adjust their dues-collection process in a way that doesn't violate the decision. UCLA law professor Eugene Volokh wrote in Reason in June that "Janus might not change that much (though after what will doubtless be a thorny transition period). In particular, state legislatures that like the pre-Janus agency fee model—under which non-union-member state and local employees had to pay "agency fees" to unions in order to support collective bargaining—can maintain the practical economic effects of that model, without violating the First Amendment."

In reality, it's too early to assess the effect of the ruling. Over time, unions will either do a better job selling their services to government employees or their membership rolls will falter. I never expected the bottom to drop out, but rather expected a slow deflation. It will take far more than a few months to monitor those results. My expectations always were muted, but that doesn't mean that the court's ruling wasn't a laudatory one.

The excessive power of public-sector unions, especially in states such as California and Illinois, has driven up pension liabilities, derailed needed governmental reforms, and protected bad employees from accountability. But let's not forget the fundamentals of the Janus case or the arguments that most union critics made in favor of it. The goal was not to undermine the power of public-sector unions or reduce their political power. That was merely a side benefit.

The plaintiffs argued persuasively that this was fundamentally an issue about the First Amendment. No one should be forced to financially support an organization whose values and efforts they oppose. Now, public employees have the freedom of conscience. That's a great victory for liberty. If public-sector unions now flourish because of the voluntary support of their members, so be it. People should be free to take mistaken positions, as well.

This column was first published by the California Policy Center.

Steven Greenhut is contributing editor for the California Policy Center. He is Western region director for the R Street Institute. Write to him at

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  1. Are you really going to be " the guy" who doesn't pay his union dues?
    Well, maybe if you like flat tires and scratched up paint or perhaps a good beating.

    1. No one should advocate or participate in vandalism or violence in this context. Anyone who engages in the described activity should be prosecuted.

      Refusing to socialize with or provide friendly help to a freeloader, however, seems the proper response for any union member who dislikes parasites. As any libertarian understands, no employer can require an employer to provide a battery jump for, say 'hello' to, share a birthday cake with, or lend a few dollars for bus fare or lunch to another employee.

      1. "As any libertarian understands, no employer can require an employer to provide a battery jump for, say 'hello' to, share a birthday cake with, or lend a few dollars for bus fare or lunch to another employee."

        Really? An employee can refuse even to speak to a fellow employee, and the employer can't fire the asshole?

        1. I'm guessing the Kirkland brand Costco guy doesn't live in a right to work state. Here in Texas, if your employer is displeased with your work for any reason, or no apparent reason, they can walk you out the door immediately. And vice versa, of course -- you're not chained to your desk at a crappy job, you can fire your employer. I did the latter.

          1. Kirkland is more village idiot brand guy

        2. Actually, "won't" is the likely corporate stance, until and unless it affects the company.
          Refusing to interact with a co-worker is sometimes a very wise move. Occasionally the company will agree.

          1. OK, but in this example it was for refusing to join a union.

      2. you obviously are not acquainted with many labor union members including SIEU & Teachers, not to mention Teamsters...yeah no chance of violent retribution or threats there...too fucking dim for words Rev.

        1. And that is why dumbass Proggies don't understand that an AR-15 is a useful tool. Threaten me with violence and you may end up riddled full of holes...

          1. .357 arguments carry a lot of weight

  2. I wonder how much of this non-effect is from employees only having a small window once a year to change their membership and dues.

    1. That was my question. I have a feeling that unions are not making it easy to get out. The numbers who reportedly are getting out sound like outliers. It suggests that those are just a few who either had extenuating circumstances or took extreme efforts to fight their way out

      1. A lot of the unions and governments, Dems of course, also locked in long term union requirements prior to the ruling. There is still question if some employees have to wait for those terms to expire for closed agencies. Still quite a few lawsuits on the narrow windows to leave a union with ever changing mailing addresses. This will take a while

    2. Reason itself has had a couple articles about unions using creative ways to deny people the ability to withdraw. I'm sure plenty more will, but I expect slow deflation as the author here says is more likely than overnight collapse. I think most people would agree that the majority of government employees tend to lean left, although I'm sure how far they lean depends on the area... But take that into consideration, plus even just naked self interest of center right people perhaps being willing to support the union because they figure they might get something out of it... I doubt membership will collapse, but it will probably make them step up their game.

    3. Maybe a little but not much. The decision was announced in June and it's September now. Assuming that the contract renewals are evenly spaced throughout the year, we should be seeing about a quarter of the people having (and declining) the opportunity to leave their unions.

      Okay, that's an upper bound. Nobody would realistically expect the decision to be implemented the very first day. And the data for the article above probably isn't up the the very minute. And most importantly, contract renewals are not evenly spaced throughout the year. But even accounting for all those factors, under the unions' (and Kagan's) catastrophe predictions, we should have expected a 5 or 10% hit by now. Something bigger than the >1% we've seen so far.

      So yes, some small component of the data can be explained by the membership renewal windows. But much more of the observed data can be explained by the interpretation that the unions' hyperbole was just that.

  3. Give it time for people to defect from unions.

    The first impact we will see is less new members. When new gov employees have the option to join or not, more will never join than in years past. The existing memmbers are evidently fully committed to the cause.

    1. Also, why does it seem there's just a single union? I see no reason employees can not create another union altogether apart from government legislation effectively forbidding it.

  4. Is there a law prohibiting public sector union contracts from including payments directly to the union? Lets say the union loses $10 mil in revenue from former union members opting out of paying dues, the next contract simply includes a provision for a $10 mil "agency fee" or some such paid directly to the union and the union continues making its usual $10 mil of campaign contributions to the pols who oversee the union contracting process. How hard is that?

    1. I'm sure nonsense like that will totally happen. Or just random public support on an annual basis directly from the state government, or similar stuff. Lefty politicians will do anything they can to keep the gravy train going.

      1. If you read the Volokh link, that is already happening -- instead of unions bilking their members who don't want to "contribute", the legislatures are bilking taxpayers and handing the money directly to unions to make up for the losses in dues.

        1. I thought I had read something similar before, but didn't recall for sure so didn't mention it... But yeah, makes sense.

    2. No, in fact Eugene Volokh said what might happen and seems to have happened is that the legislature just makes a straight payment to the union. In effect, it's buried even deeper and hidden better, so expect payments to rise.

      But that will only make it harder for unions to hang on to employee dues, since why should they pay when the union gets a direct handout? Suppose it gets to the point that 90% of government employees opt out. It's going to make the union seem more obviously superfluous, and that will change the dynamics, but beyond that, my crystal ball is cloudy.

  5. It's always the end of the world when it comes to the rollback of government intrusion.

  6. Elena Kagan was wrong?! Let me go dig out my Shocked Face....I think it's in the bottom drawer with that shirt that has a hole in the armpit.....

    1. "Justice Elena Kagan argued that the decision "will have large-scale consequences." She predicted that "public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces.

      That does not sound like a legal rationale for her dissent.

      1. You forgot, SCOTUS has claimed the power to decide what is legal, to interpret the constitution however they see fit regardless of the wording. Kagan just made it abundantly clear that she was "voting" based on partisan results-based reasoning rather than petty considerations like the actual wording of the 1st Amendment. Mask slippage.

  7. In 2006, Rev. Arthur L. Kirkland, exposed his privates to me without my consent.

    I have two witnesses who saw this assault.

    I was so traumatized by this, I completely forgot about it until now.

    1. He groped me in 2007, and again in 2008

      1. Admit it. You enjoyed it.

  8. You're saying that the unions are two-faced about the Janus decision?

    1. Well, Reason is being two-faced about the double posting about Janus.

    2. time to double down?

  9. "If public-sector unions now flourish because of the voluntary support of their members, so be it. People should be free to take mistaken positions, as well."

    How about if there's some kind of strike, every government worker who - without prior permission - fails to show up for work will be fired. If they have a doctor's note, it better be for something really debilitating - if they just have a broken leg or two let them work at their desks while healing.

  10. Well this is too bad! I was hoping they would lose a ton of members quickly, but oh well. I imagine they will slowly bleed members over time, and fewer new employees will sign up. I'm sure politicians in left leaning states will find ways to send money their way to keep them rolling in dough.

  11. American Federation of State, Municipal and County Employees should be "American Federation of State, County and Municipal Employees". Unless, of course, the typo was made on purpose to invalidate the lawsuit.

  12. So if the purpose of a union is to protect the little guy from oppressive, powerful, self-serving power brokers, isn't the notion of a Public sector union admitting the government is essentially a powerful, self-serving, power broker?

    More laws to needed to protect us from the tyranny of these brokers while at the same time giving more bureaucratic/legistlative power to the them is clearly the only answer to this conundrum.

    1. The purpose of a union is to 'protect' its members as a distinct group. Govt employee unions demonstrate govt employees are a distinct group with their own interests that differ from ours. That shows "we are the government and the government is us" is a lie.

      1. Wait, I thought the purpose of a union was to Organize political graft and corruption, while enriching the leadership.

        1. hence the quotes around 'protect'

  13. Kavanaugh frequently resorted to sounding off his high-school r?sum? when confronted with uncomfortable questions.

    The Dems were the ones asking about that shit.

  14. If Kavanaugh shows emotion, its bad. If he doesn't, he is a cold hearted son of a bitch who is clearly capable of rape.

  15. I predicted Janus would have little effect.

  16. The Janus decision may not have had the predicted consequences overnight, but that doesn't make it a good decision. Even Eugene Volokh, libertarian icon and First Amendment expert, did not agree that agency fees were a violation of the First Amendment.

    1. Limiting law is a virtue in of itself.

  17. The teachers union is a mess, and is not needed to ensure the quality of school teachers, nor those teachers' rights. The teachers union, much like most unions, exists to force their desires on unwilling taxpayers. Teachers have the highest number of holidays, and they work, at most, six hours per day, if you include the many breaks included in their union contract. In addition, their pay is outsized given the work they do. It is interesting to contemplate that the students entering colleges of education nationwide have the highest self esteem and the lowest GPA's of any students in the average university. Both my girls went to parochial schools, and their knowledge exceeds the best students in the government schools.

    1. what ever gave you the idea that teachers exist to teach students? That's like expecting priests not to diddle the little boys & girls.

  18. The U.S. Supreme Court is attacking working people by destroying public-sector unions

    Public sector unions are outlawed in much of progressive Europe because they corrupt government. They should be outlawed in the US as well.

    (Voluntary private sector unions, of course, are fine.)

  19. I seem to recall that the Wisconsin legislature, led by Scott Walker, forbade government employers from deducting union dues from pay. The result was a precipitous drop in union membership, since now employees had to pay union dues directly. Apparently workers felt that union membership wasn't worth it. Since then, unions went from representing 14.1% of workers in the state in 2011 to 9% in 2016. Since then, median salaries for teachers in the state have fallen by 2.6% and median benefits declined 18.6% -- but some of this is explained by older teachers leaving and being replaced by younger ones, who can't demand the same salaries. The loss of "benefits" is in how much is paid for benefits, not how much benefit there is to the employee. Insurance and retirement benefits were managed by the unions, who had cozy arrangements with captive companies and charged way too much for the good they did -- another reason for the drop in membership.

    Numbers from CNN. economy/wisconsin-act-10-teachers/index.html

    Take the space before "economy" out. Apparently you can't post things that run over 50 unbroken characters.

  20. The Janus decision is currently the only thing that's preventing Big Leftist Backing Unions from Having every American lawmaker in their financial pockets.

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