The Janus effect: looking back and looking ahead

  • Eight months after the Supreme Court stopped public sector unions from collecting “fair-share fees” from workers who declined to join, union membership is only down slightly.
  • Gains and losses vary widely by state, with California, Michigan, and New Jersey losing union members, while Arizona, Colorado, Washington state, and Oklahoma added members.
  • The battle over the long-term impact of Janus is being fought out in the courts and statehouses, where new lawsuits and state legislation seek to limit its effects.

In her dissent last year from the U.S. Supreme Court’s ruling in Janus v. AFSCME, Justice Elena Kagan warned of “large scale consequences. . . involving millions of employees” that would result from public sector unions being unable to collect mandatory “agency fees” from employees who declined to join.

The court as a whole disagreed with Kagan, ruling 5-4 against AFSCME and stripping public sector unions of their ability to collect “fair-share fees” from workers who declined to join.

How, then, are these unions faring eight months after Janus?

Effects on public sector union membership

The answer is that the effects on membership so far have been a mixed bag. Nationally, according to the Bureau of Labor Statistics, union membership in state and local government declined by only 54,000 members — less than one percent — in 2018.

The Mackinac Center, which supported Janus and has been working in the states to educate public employees about their new rights, noted in a blog post earlier this month that union membership in the 22 states that previously did not have right-to-work laws yet are now subject to Janus have seen the largest drop in union membership (though still relatively small). Union membership in these states dropped 1.1 percent from 4,654,3000 to 4,603,600 even though state and local governments were adding jobs. Despite fairly steady membership, however, unions in these states have been significantly impacted by Janus through a decrease in revenue from lost agency fees.

Gains and losses vary widely by state, however. California took the biggest hit, with a loss of 100,000 public sector union members, and New Jersey and Michigan each lost 30,000 members.

Other states, particularly where there have been teachers strikes, have seen significant gains. Arizona saw 24,000 new members added in the public sector, while Oklahoma added 16,000 members, Colorado added 19,000 members, and Washington state added 35,000 members.

Another factor in these increases could have been a series of massive educational programs run by unions in preparation for Janus. These programs were put in place not merely to avert disaster but to reinvigorate a culture of organizing.

“Janus hasn’t had any effect at all on us,” said Kentucky AFL-CIO President Bill Londrigan, whose state gained 5,000 new public union members. “We find public sector unions are being more effective at organizing internally, they are being aggressive, and they are being effective at communicating with their members.”

Ultimately, the Mackinac Center concluded, “it’s unclear how much of the decline in unions is the result of Janus or long-term trends with a variety of sources.”

“The important thing is that union members have a choice in membership.”

The battle in the courts and statehouses

The battle over whether the spirit of Janus will be realized across the country is now being fought in the courts and statehouses, according to a report earlier this month from the Manhattan Institute. A combination of new state laws, executive orders, and court decisions have emerged to restrict outside groups’ ability to tell public employees about their legal rights. State legislation and new union policies are trying to limit when union members can leave unions by restricting the opting-out period to narrow timeframes during the year. Unions are also allowed under some new state laws to make membership more attractive by withholding employment benefits like life insurance or legal representation in grievance proceedings from nonunion members.

On the pro-Janus side, the report found that lawsuits in almost every federal district court are pending to allow nonunion members to recover agency fees collected from their paychecks prior to the Supreme Court’s decision last year. Additionally, a separate slew of lawsuits are contesting unions’ power to be the exclusive bargaining representative of public-sector workers. If successful, these cases would empower individual employees or smaller groups of employees to negotiate directly with management.

One such case is Uradnik v. Inter Faculty Organization. Brought by the Buckeye Institute, plaintiff Kathleen Uradnik, a Minnesota professor, contends that the practice of appointing a union to speak to the government for her, rather than allowing her to disagree with many of the union’s positions and speak for herself, is a violation of her First Amendment right to freedom of association.

“Eliminating public-sector unions’ power of exclusive representation would reduce government unions to the kinds of factions the Founders anticipated in designing the Constitution — still dangerous, but limited by the political process,” wrote Jacob Huebert, a Senior Attorney at the Goldwater Institute and part of the team that litigated Janus v. AFSCME. “The Supreme Court should therefore hear Kathleen Uradnik’s case, both to protect her First Amendment rights and to ensure that the problem of faction will be duly curbed as the Founders intended.”

Image Credit: “DSCF3631” by MN AFL-CIO is licensed under CC BY 2.0

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