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It’s Not Just Union Dues, It’s Collective Bargaining: Looking to States That Banned Them as Post-Janus Crystal Ball

By Carolyn Phenicie | January 29, 2018

The Supreme Court is about a month away from hearing a pivotal case that could upend decades of public sector union policy.

Lawyers in the case, Janus v. AFSCME, have made their arguments to the court on First Amendment grounds — that forcing teachers and other public employees to support union-advocated policies they disagree with violates their right to free speech. Pro-union supporters argue that dues are necessary to prevent free riders from benefiting from union-negotiated contracts without paying their share, and that they make it easier for employers to negotiate with one representative of all workers.

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As Oral Arguments Near in Landmark Janus Case, Both Sides Prepare for Possible End to Mandatory Union Dues

Based on an earlier case and the court’s current makeup, many expect the nine justices to abolish agency fees after oral arguments are heard February 26. That likely outcome has some education reform advocates hoping that an end to mandatory dues means reduced power for teachers unions, at least as measured by their membership numbers and income.

Could that, in turn, bring commensurate changes in education policy that reformers have sought and unions has long resisted on issues such as performance pay, tenure, “last-in-first-out” layoff policies, or school choice?

Unions have been “very effective in blocking things that they see as a threat to their members. That balance of power might change a little bit with this decision,” said Dan DiSalvo, an associate professor at the City University of New York and senior fellow at the conservative Manhattan Institute.

How quickly, or to what degree, that might happen, however, remains unclear, at least as judged by states that have already revoked mandatory dues.

Unions can essentially affect education policy in two ways: political advocacy through lobbying and campaign donations in state legislatures, and through contracts they collectively bargain on behalf of members at the district level. An end to mandatory dues could limit unions’ political influence in state legislatures, but it wouldn’t necessarily change their rights to collectively bargain.

About half of states are what are often called right-to-work states, meaning they don’t require employees who object to a union’s positions to pay dues to that union. Those changes came about largely in two waves — in the 1940s and ’50s, after the Taft-Hartley Act of 1947 allowed states to enact right-to-work laws — and in the past decade.

Most of the states that have changed their mandatory dues laws in the past decade have at roughly the same time changed laws limiting the issues on which teachers can collectively bargain. They have simultaneously ended mandatory dues and, for example, allowed teachers to be paid based on performance rather than a salary schedule built on years of experience and level of education.

“I don’t think we have a good test case yet of what just the reduction in [union] resources does on its own,” Katharine Strunk, a professor of education policy at Michigan State University, told The 74.

Lawmakers in Wisconsin, for instance, made perhaps the best-known and most dramatic changes to public sector union laws there in 2011, significantly curtailing the areas in which public sector unions can collectively bargain, which has allowed districts to more easily lay off poor-performing teachers or offer performance-based pay. Legislators did away with mandatory dues at the same time.

Michigan lawmakers in 2011 banned collective bargaining over evaluations or teacher assignments, changed tenure laws, and lifted caps on charter schools — a year before lawmakers banned mandatory dues. Indiana lawmakers followed a similar timeline, limiting collective bargaining in 2011. That law, for example, restricted unions from negotiating evaluation policies, before legislators passed a right-to-work law the next year.

Strunk co-wrote a paper in 2014 that noted many of those changes, concluding that new variation in how unions operate “represents fertile ground for new empirical analyses of union influence.”

Other states have made the changes over a much longer time frame. Iowa, for instance, has been a right-to-work state since 1947, but just last year instituted a host of limitations on how teachers can collectively bargain, including on issues like bonuses and seniority-based placements.

To be sure, an end to mandatory union dues would mean a drop in revenue — but how that translates to political clout remains to be seen, and would depend on the political dynamics in each state.

In New Jersey, for instance, the powerful state affiliate of the National Education Association has spent 1 in every 5 dollars statewide on lobbying and political campaigns, DiSalvo said.

“It outspends the next three organizations or interest groups in the state combined,” he said. “In that sense, it’s not like they’re going to go away here. They’ll still be potent forces, but they may not be as overwhelming as it has been,” he added.

Elsewhere, citizens have been more supportive of unions.

In Ohio, for instance, voters by a wide margin overturned a law that curtailed collective bargaining rights in 2011.

“My sense is that the public will only go so far in destroying unions,” said Todd DeMitchell, an education professor at the University of New Hampshire.

Americans expect private businesses to attempt to limit workers’ rights, but wouldn’t accept that from the government, he said.

“People are always a little bit concerned because the state is not like any other regular employer. The concept of a state not acting in a fair manner towards its citizens and its employees rankles,” DeMitchell added.

Regardless, unions are already expecting a drop in membership.

“It definitely would be a blow to unions to lose 10, 20, 30 percent of their members. Any organization seeing a revenue decline of that magnitude is going to have to change it up,” DiSalvo said. “Obviously nothing in the political world usually happens on a dime or immediately. This is something that is going to take four or five years.”

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