Days after the U.S. Supreme Court ruled against public-employee unions in Janus v. American Federation of State, County, and Municipal Employees Council 31, there are many questions about what this will mean for the future of teachers’ unions.
The justices decided that “agency” or “fair share” fees, which public-sector unions had been charging to nonmembers to cover the cost of collective bargaining, were unconstitutional. The Supreme Court also ruled that employees need to affirmatively opt into the union—rather than having to opt out.
Bradley Marianno, an assistant professor of educational policy and leadership at the University of Nevada-Las Vegas, was the co-author of a recent analysis that prohibiting agency fees. Education Week spoke to Marianno about the consequences of the Janus decision, and what we can expect to see with teachers’ unions in the months and years ahead. This interview has been edited for length and clarity.
Agency fees were already unlawful in 28 states. What can we learn from those states about what’s likely to happen going forward in the 22 states affected by the ruling?
Since 2011, six states have switched to right-to-work laws, and we hadn’t seen that type of right-to-work legislative activity in several years. Wisconsin switched for teachers in 2011, and Michigan switched in 2012 for all employees. What we’ve seen in those states is a drastic reduction in membership. And that’s not too surprising because the real cost of membership has essentially changed for teachers. The cost of fair-share fees were about 70 to 80 percent of union membership. A teacher is really deciding, ‘Am I going to pay 100 percent of membership dues, or am I going to pay 70 percent?’
With right-to-work, it’s 100 percent of membership dues versus 0 percent. It’s not too surprising that some teachers are making that cost calculation in their heads and deciding to resign their membership. Membership in Wisconsin has been cut in about half, and we’ve seen similar reductions in Michigan. [For] the other states, West Virginia and Missouri, it’s too recent to tell. You’d expect similar reductions there.
What we find from our research as well is these states are also reallocating their expenditures. Teachers’ unions are adapting. You’d expect as membership declines, and unions are collecting less revenue from dues, that they’d be less politically active, have less money to allocate to political contributions. We to political candidates.
Recently, the California Teachers Association came out with a revised budget—, but they’ve actually allocated more money to political contributions. We might actually see state unions adapting in ways to become more politically active. After Janus, what happens at the state level in terms of legislation matters a lot more than it did previously.
What do you think the timeline of membership declines will be?
We found immediate declines within the first year in Wisconsin and Michigan. It’s not necessarily easy to resign membership, although this decision, I think, took it a step further than we expected and now requires public-sector union employees to actually opt into membership in the union.
Michigan enacted a law in 2012, along with the right-to-work package, that prohibits paycheck deduction. It used to be that ... union membership dues were automatically deducted from teachers’ paychecks. But when the law had passed, teachers had to opt into this. So the unions had to get employees to sign up, and teachers had to make decisions about their membership. Union leaders voiced to us that that was even more difficult than the right-to-work legislation, because now teachers had to physically opt into membership. Just the logistics of managing that on a state level were massive, so I think teachers’ unions will find some difficulty in managing this opt into membership [change]. We could actually see declines faster than what we saw in other right-to-work states.
For employees that were previously automatically opted in, are they purged from the lists? Or does this just apply going forward?
It’s unclear how that’s actually going to pan out, in terms of how locals are going to implement that aspect of it. ... There’s actually some state-level activity already in terms of legislation making it easier for unions to reach members and get that opt in. For example, California is considering a bill in the legislature that requires at new employee orientations, the opportunity for teachers’ unions to give a presentation. I believe New York has enacted similar legislation recently.
See: To Stem Likely Membership Losses, Teachers’ Unions Play Offense
You might see more movement in states like that, with teachers’ unions pushing for such legislation to help facilitate this opt-in membership, to reach out to new membership, and try to retain employees. But it really remains to be seen how state and local teachers’ unions and associations are going to facilitate this opt-in process.
What do unions have to do for nonmembers if they’re no longer paying agency fees?
When a union is certified, they are deemed typically as exclusive representation for an employee group. That exclusive representation requires them to represent all employees at the collective-bargaining table, as well as in any provision under their contract, including grievance proceedings. This is the quintessential free-riding problem that unions have [used to advocate] for the provision of fair-share fees, where you have nonmembers who are covered by the existing collective-bargaining agreement that unions are required to represent in grievence proceedings, but they’re not paying into the union. Unions will be required to represent these employees who are essentially not paying for those services.
What happens to a teachers’ union’s exclusive representation if a majority of teachers are not in the union? Does the district still have to collectively bargain with the union even if most teachers aren’t union members?
That’s going to vary by state law, in terms of how unions are actually certified. In California, for example, unions are certified to the extent that they can demonstrate that a majority of employees in the bargaining unit want them to be the exclusive representation. Now there are some rules in terms of demonstrating evidence of that, but after that union is certified, they are the exclusive bargaining representation until the employees decertify them. You have cases in states like that where teachers are members of unions, and they have never actually participated in the certification election before.
Essentially, until that union is decertified, they will represent the employees regardless of whether the majority are not members. You could see cases where teachers work hard to decertify a union if the majority are not members. In contrast, in other states like Wisconsin, they require unions to recertify every year, so you can imagine the difficulty teachers’ unions will have in Wisconsin versus California.
But the school district couldn’t just say, “Most teachers aren’t members so we’re not going to bargain with you?”
They could not, until the teachers present evidence that they no longer want to be exclusively represented by this union. This could happen arguably—if unions no longer feel like they want to be representing nonmembers, they could advocate at the state level to get rid of the exclusive representation clause. That opens up a whole other can of worms whether you have multiple employee groups representing various factions of teachers.
That’s been a theoretical argument in the labor literature, what would happen if you got rid of exclusive representation? The unions might favor that because they no longer have to represent nonmembers, but then we would see a plethora of different labor organizations representing different factions of teachers.
Could union dues now go up for the teachers who choose to stay in the union? How will this affect the teachers who remain in the union?
We haven’t seen any evidence in right-to-work states [of raising dues] to offset perhaps the loss in revenue, but what you do have is a problem of collective action for teachers’ unions to represent members and nonmembers. Certainly that can create adversarial relationships within the union. Those who decide to stay are going to have to manage those kinds of feelings when they’re working in a school with a colleague who’s deriving benefits from a contract but not paying into the union.
Are there any other questions or trends that you’re going to be watching in the months ahead?
What are states going to do in terms of making it easier or harder to certify as a union? What are states going to do at the legislative level to provide unions more protection versus less protection? You’ve had governors come out strongly and say, ‘We stand by our unions.’ Well, what does the state-level legislation look like? Because I think there’s still a lot of wiggle room in legislation moving forward. ... You see a state like California essentially using that wiggle room to provide more protections to unions, but you could also see it go the other way. Michigan’s 2012 law prohibits paycheck deduction, so you could see states implementing those [types of laws], which would only make it more difficult for unions to attract and retain membership.
I think something else to watch for is, what are unions going to do? We’ve seen six strikes in states across the nation recently—primarily right-to-work states, with the exception of Colorado. You might actually see more political voice on the part of the union as they realize the important stakes of state-level legislation.
I think we’re also going to see that unions have to demonstrate to their members that they are valuable. We can actually see more responsiveness on the part of teachers’ unions, and that’s only going to be a benefit for the membership. ... It’s going to be about, what can unions do for teachers as a profession?
Image provided by Bradley Marianno