Now that SCOTUS has finally dropped the Janus decision, more litigation is underway.
The National Right to Work Foundation asked the Supreme Court to hear a case that could financially weaken unions by allowing workers to quit them at a faster pace.
In a petition sent last Thursday, the group asked the high court to weigh in on the question of “window periods” — specified dates when workers can opt out of paying union dues. Two Michigan grocers asked their union, United Food & Commercial Workers, to stop automatically deducting dues from their paychecks but did not do so during a specified 15-day window or send in the required certified mail. The plaintiffs argue such restrictions are a violation of federal labor law.
The Sixth Circuit dismissed the case in February, saying the plaintiffs had failed to prove the union acted in “bad faith” and was simply holding itself to the contract signed by their members.
The petition comes on the heel of the Supreme Court’s decision last week in Janus v. AFSCME, which says public sector workers are not obligated to pay non-member fees to a union. Critics warn the decision creates a “free rider” problem, in which workers will leave their union so they can receive the benefits of collective bargaining without having to pay any fees.
The two sides in the high-profile Supreme Court case Janus vs. AFSCME, vital to teachers unions rallied in front of the court ahead of oral arguments scheduled for Monday, according to a report from POLITICO.
“What’s disgusting? Union busting!” a crowd of teachers union backers chanted, holding signs that read “Unrig the system” and painting Education Secretary Betsy DeVos and the Koch brothers as conservative billionaires intent on harming working people.
Meanwhile, Rebecca Friedrichs, a former California teacher who in an earlier case challenged unions’ power to collect fees from non-members, also took to the steps to say that she is “thrilled” the court will again consider the fee question.
The Supreme Court is hearing arguments in Janus v. AFSCME, a case that challenges the money that public unions such as teachers unions collect from non-members to cover their share of collective bargaining costs. With Justice Neil Gorsuch now on the court, the justices are expected to weigh in favor of the plaintiffs.
The crowd outside on Monday appeared to include more labor advocates than it did people backing plaintiff Mark Janus, an Illinois state worker who declined to join AFSCME. Janus argues in his lawsuit that the payments he’s compelled to pay the union violate his First Amendment rights.
“What’s outrageous? Janus cases!” union members chanted, in between blasting upbeat songs like Marvin Gaye’s “What’s Going On” and Aretha Franklin’s “Respect,” which at times drowned out the crowd backing Janus.
Bonnee Breese Bentum, an English teacher who’s a member of the Philadelphia Federation of Teachers, said, “We must stay united.”
“Everyone is part of this,” she said. “This case could change the landscape of America.”
If the justices rule in favor of Janus, as expected, the ruling could potentially hit union membership rosters, drain their coffers and dampen political activity.
Seema Nanda, executive vice president of the Leadership Conference on Civil and Human Rights and a former Labor Department official during the Obama administration, spoke from a small stage.
“Standing in the way of strong unions doesn’t create an America as good as its ideals,” she said.
The Supreme Court took up the same question in a case brought by Friedrichs in 2016. The court deadlocked 4-4 following the death of Antonin Scalia.
“When Scalia first died, I was devastated,” Friedrichs said. “But when Mark’s case came to us, I was thrilled. We had President Trump appoint Justice Gorsuch, who is fair. We didn’t have to wait another five years.”
Friedrichs said the case could be a win for workers who disagree with union political activities.
“I’m for school choice,” she said. “The way they attack Betsy DeVos … I think she’s done wonderful things for our children. They’re doing that with teachers’ money.”
Next week, the Supreme Court of the United States will hear arguments in the Janus case which could have a profound impact on public sector unions. William Messenger, who will be arguing the case on behalf of plaintiff Mark Janus will be a speaker at the Spring 2018 CUE Labor and Employee Relations Conference in Tampa. He’ll cover the case, and how the decision could ultimately impact private sector unions.
More from POLITICO on the important case below:
Teachers’ unions have launched aggressive campaigns to hang on to their members, in anticipation of a potentially devastating Supreme Court decision that could cost union treasuries millions of dollars and dampen membership rolls and political activities.
The high court on Monday will hear oral arguments in a case brought by Mark Janus, an Illinois child support specialist who, like teachers, is a public employee. Janus sued his union, AFSCME Council 31, over its mandatory collection of agency fees, which are dues collected from nonunion members to cover the costs of collective bargaining.
Surveys suggest that Janus isn’t alone. According to the General Social Survey, a nationwide poll funded by the National Science Foundation, 23 percent of unionized government employees say they don’t believe workers need strong unions, and 32 percent identify as Republicans or Republican-leaning independents. The independent research organization, a project of NORC at the University of Chicago, gathers data and tracks social trends.
The prospect of an unfavorable decision has prompted national and state teachers’ unions to reach out and remind teachers and staff about the support they provide for them in the classroom. They’re urging non-nion members to join and existing members to recommit. And they’re scrutinizing their budgets to ensure they can withstand the potential financial blow of a ruling against them. Only public employee unions would be affected.
“It’s a hurricane,” said Lily Eskelsen García, president of the National Education Association, the nation’s largest teachers’ union. “We know how fast it’s moving, when it’s going to make landfall. Nobody is sitting back.”
Janus has argued that the fees violate his First Amendment rights because the union backs political candidates he does not support. Agency fees can’t be used for union political activities, though proponents of the case argue that the fees effectively subsidize political speech.
Ryan Yohn, a 39-year-old middle school American history teacher in Orange County, California, brought a similar lawsuit against the California Teachers Association last year. Backers of Yohn’s case expect to use it as a way to resolve any issues left unresolved by the Supreme Court in Janus’ case.
“I’m more conservative politically,” Yohn told POLITICO. “I found that the union’s policies in the classroom and outside of the classroom didn’t go by the principles that I live my life by and the money was going toward politics that I don’t agree with.”
For example, Yohn said he finds California’s state teacher tenure laws “quite unfair.”
Those laws, which govern the hiring and firing of teachers, faced a major legal challenge in recent years in the case Vergara v. California. The plaintiffs argued that certain job protections allowed ineffective teachers to remain in the classroom. But the California Supreme Court delivered a huge win to teachers’ unions when it declined to hear the case in 2016.
With Justice Neil Gorsuch now on the high court, education policy watchers expect a majority of the justices will rule in favor of Janus, possibly striking down agency fees as unconstitutional. The Supreme Court last year considered the same legal question in Friedrichs v. California Teachers Association — but it deadlocked 4-4 following the death of Justice Antonin Scalia.
Unions are watching closely. Melissa Cropper, president of the Ohio Federation of Teachers, said, “We can no longer take for granted our membership. That stability isn’t guaranteed any more.
“Our message is, ‘What does the union do for you, and is that more important than a few dollars going to a candidate that you don’t support?'”
In recent briefs filed with the Supreme Court, the National Education Association and the American Federation of Teachers — the nation’s two largest teachers’ unions — argue that teachers will opt out of joining the union if they can reap the benefits of collective bargaining without paying the fees.
“Free riders” could sow “discord” in schools, AFT said. And groups opposed to teachers’ unions could “weaponize” a ruling against them “by launching extensive campaigns targeted at public employees, urging them to drop their union membership,” NEA argued. “The avowed purpose of these campaigns is to deliver a ‘mortal blow’ to public-sector unions and ‘finish them off for good.'”
More than half of all public K-12 teachers belong to a union, according to Census Bureau data. And unions are targeting members in 22 states where agency fees are mandatory; in other states, laws vary. Among these 22 are some of the country’s most populous states with strong teachers’ unions, like California, Massachusetts and New York — and states like Ohio and Pennsylvania, where President Donald Trump clinched victories in 2016.
The New York State United Teachers has knocked on the doors of 55,000 members. In Illinois, Ohio and Pennsylvania, teachers’ unions have launched networks of school leaders assigned to talk to teachers about the implications of the case.
“We have places where our locals did door-to-door during the summer. The conversations were really long; it was like opening up a well. ‘What’s really bugging you at work these days? Class sizes?,'” said Daniel Montgomery, president of the Illinois Federation of Teachers. “These are really valuable conversations and connect people to the work.”
In Massachusetts, the state union held a leadership conference in the fall to train school-based leaders on a 10-minute conversation they could have with coworkers about the case. In New York City, the United Federation of Teachers held a breakfast event that featured a conversation with officials from AFT-Wisconsin about the “destruction” that state’s right-to-work law had on unions. Such laws bar an employer and a union from signing a contract that would require the affected workers to be union members.
Backers of the Janus case include conservative organizations that have long viewed the unions as an impediment to education reform.
For example, the Michigan-based Mackinac Center for Public Policy, which has received donations from Education Secretary Betsy DeVos’ family, filed a brief in the case in December. In 2012, DeVos’ husband, Dick DeVos, was also instrumental in making Michigan a right-to-work state.
The Bradley Foundation, a conservative philanthropy, bankrolled the Friedrichs case, which the Supreme Court deadlocked over last year.
But some supporters and opponents of the case agree that the lawsuit represents an opportunity to better serve members.
“This case won’t limit unions or take away their power,” Yohn said.
“I think this case will make unions even more effective at what they were designed to do,” he said. “It’s going to keep them more honest and keep them away from the extreme edges of the political spectrum.”
Union leaders also say the pressure brought by the case can make them stronger and responsive to members. “Our position is, do not fear [Janus],” Montgomery said.
“We have to hunker down and hone our strategy. We can be really strong and exercise our power … but we’re going to look different.”
Randi Weingarten, the president of AFT, has repeatedly called the case an “attack” by conservative groups meant to “destabilize unions” as well as the progressive issues and candidates they support.
“They not only want to defund us, they want to break us,” Weingarten said. “Is the Democratic Party worried? Yes.”
Another strategy that teachers unions are pursuing is the use of legally binding “recommitment cards” or “membership cards” that members fill out and sign. These cards ask members to “reaffirm” their commitment to the union regardless of the outcome in Janus, and authorize the union to continue to deduct dues until the worker signals otherwise. Typically, these agreements limit the time frame during which workers can register these objections to a few weeks during the year.
Education Minnesota says it has obtained such signed commitments from at least 80 percent of its 76,000 active members.
Barbara Goodman of AFT Pennsylvania, which represents 26,000 workers, said, “If the Janus case comes down against us, we want there to be no question that these are members who’ve elected freely to have their dues taken out of their paychecks.”
But backers of the case have already asked the Supreme Court to weigh in on the question of the recommitment cards and it’s not clear they will survive the court’s decision.
Patrick Semmens, a spokesman for the National Right to Work Foundation, said the group has asked the high court to invalidate agreements that could limit workers’ rights down the line.
“We argue that union can’t limit your First Amendment rights to two weeks a year. The Constitution should apply year round,” Semmens said.
But there will be some teachers who refuse to join their union or recommit. And union leaders say they’re being realistic about the financial problems that could pose.
“We’re preparing,” said Kathi Griffin, president of the Illinois Education Association. “We’re revising our budget … We don’t have our heads in the sand.”
Catherine Fisk, a labor law professor at the University of California, Berkeley, said teachers’ unions fear members “who may say, ‘Wow, it’s a tight financial year for my family, I need to save that money. I appreciate what the union does for me, but I have to economize, and this a way to do that.'”
“Naturally, it will have an impact on our budget,” said Eric Heins, president of the California Teachers Association. “But we know who the fair share payers are.”
Nationally, the American Federation of Teachers has about 1,591,911 members and nearly 93,844 agency fee payers, according to the union’s most recent financial report filed with the Labor Department. The National Education Association has about 2,987,077 members and 87,764 agency fee payers.
An AFT spokesman said it’s difficult to extrapolate the potential cost.
If the Supreme Court strikes down agency fees as unconstitutional, Heins said the California Teachers Association “will try them to get them to become members,” he said.
“And a lot of them do, once you talk to them and connect with them.”