The Supreme Court Dealt a Blow to Unions, But It Wasn’t a Knockout

Union members hold signs during a rally outside of San Francisco City Hall, on February 26, 2018, after the Supreme Court begins hearing arguments in Janus v. AFSCME. Photo: Justin Sullivan/Getty Images

There’s no question that the U.S. Supreme Court’s June ruling in Janus v. AFSCME (American Federation of State, County, and Municipal Employees) hurt organized labor. The court’s 5-to-4 opinion found that public-sector unions violated the First Amendment by collecting agency fees from workers who aren’t union members. Unions call those payments “fair share” fees because union officials are still legally required to bargain on behalf of all workers in a shop, whether those workers are union members or not. After Janus, unions still have to represent nonmembers, but must do so with fewer financial resources. Not only did Janus threaten union finances, it threatened membership rates, too; if workers could benefit from union work without paying fees, they’d likely choose to do so, or so labor advocates worried. The long-term future of public sector unions looked murky at best.

But on Monday, Governing magazine reported that post-Janus, membership in public-sector unions isn’t dropping as expected. Some unions have even added members. The president of AFSCME, Lee Saunders, told the magazine that “workers are choosing to join AFSCME at a much higher rate than those who drop,” despite the union’s titular role in June’s ruling. According to Governing, membership increases in unions representing state employees in Pennsylvania, Oregon, and California, have all outnumbered dropouts.

The news isn’t universally good for unions. They are indeed losing money, even if they aren’t losing as many members as they’d feared. The Albany Times-Union reported on December 3 that after Janus, the New York State United Teachers (NYSUT) saw a 6 percent drop in the number of educators who either pay dues for union membership or pay fair-share fees as nonmembers who benefit from union representation. That translates to a loss of around $8.5 million, according to one analysis produced by the conservative Empire Center. NYSUT told the Times-Union that it’s actually only lost around 200 of the 600,000 individuals it represents, suggesting the drop could partly be attributed to new hires who had yet to join the union. Both sides agreed the decrease largely reflects a decline in agency fee payers, but of course they weren’t union members prior to the Janus ruling.

Governing suggests that union membership-drives and proactive Democratic state legislators have helped prevent a more precipitous drop in membership rates. The states of New Jersey, New York, California, and Washington, all passed legislation that makes it more difficult for workers to leave public-sector unions. In one case highlighted by Governing, New York “banned state agencies from releasing employees’ personal data that could be used by union-busting groups to persuade members to pull out.” While it’s certainly true that measures like New York’s protect public-sector unions from right-to-work groups that seek to shrink organized labor’s rank-and-file, there may also be other explanations for Janus’s seemingly small impact on union membership.

Union membership as a share of the American population has been on the decline for years. That’s partly because heavily unionized industries, like manufacturing, have begun to shrink, as the Washington Post explained in January. Most union members, however, belong to public-sector unions, like teachers’ unions. And while public-sector unions have fared better than many of their private-sector counterparts, they weren’t entirely immune from danger, even before Janus. Membership in teachers’ unions has gradually declined too, Edweek reported in October 2017. During the 2015–2016 academic year, 70 percent of teachers belonged to unions, down from 74 percent in 2011–2012. Union density was highest in urban and suburban schools.

Despite that decline, however, teachers’ unions remain relatively well-organized and proactive entities, as demonstrated by this year’s wave of walkouts and strikes. More actions are scheduled for 2019. Virginia educators plan to march on January 28 to demand full funding for public schools. Teachers in California’s Los Angeles, and Oakland, school districts are preparing for possible strikes in January. Educators are still organized, still aware of their rights, and still ready to defend those rights when they deem it necessary.

Though teachers’ unions arguably garnered most national labor coverage this year, unions regularly negotiate contracts for their members with little external fanfare. Strikes, too, are launched and concluded all the time, often without much public notice. But teacher organizing might be the best-known example of another likely reason for stable public-sector union membership. Americans tend to like unions. In August 2018, 62 percent of respondents told Gallup that they approve of unions overall. Only 30 percent said they disapprove. In similar fashion, Missouri voters emphatically refused to pass a right-to-work law by public referendum in August. That law, had voters passed it, would have prohibited private-sector unions from collecting fair-share fees from nonmembers — Janus, in other words, but for communications workers and health-care workers.

Americans have good reason to like unions. Union membership correlates to higher wages, and that’s not a new trend, as a longitudinal survey produced by Princeton University researchers Henry Farber and Ilyana Kuziemko reinforced in June. Unionized workers have made 10 to 20 percent more than nonunionized workers for the past eight decades. The gains teachers won on picket lines this year just reinforce the reasons for organized labor’s popularity. West Virginia teachers earned a pay raise. Kentucky teachers defended their pension plan. In Chicago, unionized educators at the Acero network of charter schools won concessions on some of their most significant demands, like reduced class-sizes and sanctuary-school policies, after a four-day strike.

Janus may have weakened unions by depriving them of cash, but it did not eliminate the incentives for union membership. Organizing still works, and as long as that holds true, people will continue to join unions.

Supreme Court Dealt a Blow to Unions, But Not a Knockout