Analysis: How Will a Janus Ruling Impact Teachers and Unions in Each State? Data & Interactive Maps Tell the Story

At long last, the Supreme Court has heard the oral arguments on the much-discussed Janus v. AFSCME case. Given the makeup of the court, most anticipate a ruling in favor of the plaintiff, Mark Janus, meaning that teachers who choose not to be union members will no longer have to pay annual fees. Because states take different approaches to teachers unions, a decision in favor of Janus will have considerable impact in some states and little to no direct effect in others.

Although the total financial impact of such a decision on teachers unions is difficult to predict, the most likely scenario is slow but steady erosion in union members, not a steep, immediate fall.

Where teachers can collectively bargain

To assess the impact of a ruling in favor of the plaintiff, it’s necessary to know where teachers are currently allowed to collectively bargain and where unions may collect agency fees. Using data from the National Council on Teacher Quality’s Teacher Contract Database, we examine which states are most likely to feel a direct and immediate impact from such a ruling.

In most cases, states have clear legal statutes regarding the collective bargaining rights of public-sector workers, but the legal framework is not always clearly defined from state to state. We consider state statutes, but also case law and attorney general opinions where we are aware of them.

Here is the current breakdown of where states stand on collective bargaining, the right some states provide to teachers to “bargain” with their district over a range of employment issues:

● 33 states require districts to engage in collective bargaining if teachers request to do so, generally through a majority vote for union representation.

● 11 states allow collective bargaining, but districts are not required to bargain even if teachers request it.

● In the remaining seven states, collective bargaining is explicitly illegal. Teachers can still join professional associations, which are active in lobbying at the state level and interact with districts as a voice for teachers, albeit in less formal ways than collective bargaining.

Legality of collective bargaining for teachers

States that allow agency fees.

Two states deserve a bit more explanation. While Tennessee technically “permits” collective bargaining, it requires its districts to participate in a process called “collaborative conferencing” with “representative organizations” instead. There is no obligation on the part of a district to come to an agreement. However, if a district signs a memorandum of understanding, it is legally binding.

Arizona does not permit collective bargaining. It does, however, allow districts and teachers’ representatives to meet, confer with each other, and even enter into agreements. But unlike Tennessee, Arizona bars those agreements from being legally binding. The district always has ultimate decision-making authority.

Where unions can collect agency fees and the potential impact of the Janus ruling

Agency fees are at the center of the Janus case. These fees, also known as fair-share fees, are paid by nonunion members to the union to cover the cost of collective bargaining on their behalf. Because union members and nonmembers alike stand to benefit from any contract the union negotiates, the theory goes, nonmembers should have to contribute something to the costs of collective bargaining.

About half of states already prohibit agency fees for teachers, representing a mix of states that require, allow, or prohibit collective bargaining. There are 23 states where unions can collect agency fees from teachers, and 22 of them require collective bargaining. The exception is Missouri, where collective bargaining is permitted but not required. In 2017, the state passed a law prohibiting agency fees, but enough signatures were collected that the law has been suspended until a 2018 election, when voters will decide to keep or repeal it.

Which states allow agency fees?

States that allow collective bargaining for teachers.

Given that many of the states with the highest populations of teachers are among the 23 (e.g., California, New York, and Illinois), a change in the legality of agency fees would significantly impact national union revenues. In addition to the financial losses, unions in agency fee states also stand to lose additional dues-paying members, as the amount of money a teacher can save by not joining a union increases substantially. How much revenue will be lost is uncertain, but union watchers note that both state and national organizations were already preparing for drops in membership as high as 20 percent to 40 percent. As an example, a 20 percent reduction in membership of the California Teachers Association would result in more than $40 million in lost dues.

Ultimately, a decision in favor of Janus could lead to the unraveling of public-sector unions, but by no means will it happen overnight. Unions have strategically put in place all sorts of rules and narrow opt-out windows to make it difficult for teachers to drop their union membership. For example, in New York City, teachers’ authorizations for dues are irrevocable during the school year and are automatically renewed unless the teacher gives written notice within a specific two-week window.

Clearly, states with agency fees will be hardest-hit, but other states won’t be exempt. The national unions support all affiliates, with non–agency fee states receiving more of their total revenue from national funds than agency fee states. Over time, the reduction in available funds at the national level due to the loss of agency fees and dues-paying members will start to hit non–agency fee states as well.

Unions will continue to represent teachers at the bargaining table, but a ruling in favor of Janus is likely to reduce political power at all levels. How much of a financial hit teachers unions take, however, depends in part on how they respond and whether they court a broader segment of teachers. As the president of the Ohio Federation of Teachers said, “We can no longer take for granted our membership.” This is an opportunity for teachers unions to take this sentiment to heart and provide bargaining representation and other benefits that make teachers, new and experienced alike, decide that a full union membership is worthwhile.

What may be negotiated in collective bargaining.

A version of this essay appeared on the NCTQ’s Teacher Trendline blog. You can access the data, with citations, in an Excel document here.

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