Education Week - February 14, 2018 - 12
Parties Gird For High-Court Showdown Over Union Fees
Case is latest round
in complicated fight
By Mark Walsh
Is there any reasonable chance
that the teachers' unions and other
public-employee labor groups can
pull off an unexpected victory in the
latest U.S. Supreme Court battle
over a 40-year-old precedent that
has been a bedrock of their financial
and bargaining strength?
Judging by the tone of a joint press
conference the four largest publicemployee unions held last week about
Janus v. American Federation of State,
County, and Municipal Employees,
Council 31 (Case No. 16-1466), the
labor movement is girding for an era
in which they will no longer be able to
charge "agency fees" to employees in a
bargaining unit who refuse to join the
union to cover those workers' share of
collective bargaining costs.
Such an outcome in the case to be
argued Feb. 26 would cost them not
merely revenue from the fee payers, but also some full dues-paying
Power at Risk
CONTINUED FROM PAGE 1
does not support. The unions say
all workers gain from the bargaining they do for salaries and other
benefits, so paying a fee for that is
The case, for which oral arguments will be delivered later this
month, would affect all publicemployee unions, including the
American Federation of Teachers, the National Education Association, and their state and local
affiliates. With the confirmation of President Donald Trump's
nominee, Neil M. Gorsuch, to the
Supreme Court, many analysts,
onlookers, and some union representatives themselves predict
that the justices will rule in Janus'
If that happens, teachers' unions
could see a decrease in membership over the next few years, analysts say. That's because many
who pay agency fees decide to
simply kick in the extra dollars to
become full members. The unions
would also lose the revenues
generated by those agency fees,
which could result in a reduction of union staff members. The
NEA has about 88,000 agency
fee payers, while the AFT has
about 94,000-small percentages
of the total number of teachers
"We should expect to see unions
lose some of their sway in policymaking," said Katharine Strunk,
members as at least some teachers or firefighters or state workers
would choose to quit their unions.
The presidents of AFSCME, the
American Federation of Teachers,
the National Education Association,
and the Service Employees International Union spent the Feb. 7 event
by discussing how they plan to reignite their movement and by attacking the conservative groups that
they say have underwritten lawsuits
and lobbied against union interests.
"Let's be clear. This case is about
power," said Randi Weingarten, the
AFT president. "The funders of this
case want a new Gilded Age, this
time on steroids."
NEA President Lily Eskelsen García said, "This is another attack on
strong unions. ... A good union job has
always meant a fair wage, benefits,
some job security for your family."
Those on the other side of the
case, from local union dissenters
to longtime anti-labor activists, are
hoping that victory is in their sights
despite the fact that the key 1977
precedent, Abood v. Detroit Board
of Education, survived three other
times since 2012 when the justices
had an opportunity to overrule it
but did not or could not.
"We have 22 states where government workers like myself are forced
to pay these fees even when we're
not a member of the union," Mark
Janus, an Illinois state child-support
specialist who is the lone challenger
in the Supreme Court to the agencyfee system, said in an interview.
"That's just plain wrong."
William L. Messinger, a lawyer
with the Springfield, Va.-based National Right to Work Legal Defense
Foundation, who helps represent
Janus, senses a moment approaching when the court may finally be
ready to overrule Abood.
"The foundation has been working on this since the late 1960s,"
said Messinger, who has argued two
agency-fee-related cases before the
justices and will argue Janus' case.
"Hopefully, here we have an opportunity to move the ball forward in
terms of protecting individual employee free choice."
a professor of education policy
at Michigan State University. "If
we feel like the union power really is associated with resources
and funds, ... you might expect to
see that unions are less able to
put up a fight, and we'd see more
of these policies [that they have
been advocating for, including
around tenure and teacher evaluations] flip."
For Randi Weingarten, the AFT
president, the case is an ideological attempt to minimize-even
eviscerate-the impact teachers'
Union opposers "have no interest in helping school teachers," she
said. "They just want to deplete our
Still, any significant membership
changes might take several years
to materialize, said Mike Antonucci, a frequent union critic and
the director of the Education Intelligence Agency, a private research
firm that specializes in education
He thinks some of the more immediate effects might be for the
states that don't have agency fees,
because they rely heavily on subsidies from the national unions. "If
those subsidies get reduced, and
they're on the edge already-how
do they continue to operate?" he
Yet onlookers caution that an unfavorable ruling would be a shock
to the system for unions, not a
"Could this put teachers' unions
out of business? No. Not close," said
Charles Taylor Kerchner, a professor emeritus and senior research
fellow of educational studies at
Claremont Graduate University in
California. "Unions can go to grass
roots and get back to constant or-
ganizing fairly quickly. It might
drive unions to get closer to their
core, to get closer to their members,
and to be sort of more in touch with
what's going on."
12 | EDUCATION WEEK | February 14, 2018 | www.edweek.org
The last time the issue was before
the high court, in 2016 in Friedrichs v.
California Teachers Association, it ap-
Knocking on Doors
Indeed, teachers' unions in
agency-fee states have already
started recruiting educators to become full members and retain their
memberships regardless of the Supreme Court ruling.
"When people get that this is a
It's really about
benefit and right we
have, we have fought
for, we protect,
we have earned."
'Whose side are you on?' moment,
and what the proponents of this
case are trying to do, they get really, really mad," Weingarten said,
adding that local affiliate leaders
have been having one-on-one conversations with members.
In Minnesota, more than 1,200
fair-share fee payers have become full members since September, when Education Minnesota
peared that a majority of the justices
were prepared to overrule Abood. But
then Justice Antonin Scalia died, and
the court spilt 4-4, leaving a lowercourt ruling for the unions intact.
It looked like anti-union groups had
come as close as they could to achieving their longtime goal of eliminating
agency fees but would potentially go
years without getting another viable
chance. If Hillary Clinton had won
the White House, she would presumably have appointed a labor-friendly
justice to fill Scalia's seat.
But the election of Donald Trump
gave unions reason to tremble again.
His Supreme Court appointee, Justice Neil M. Gorsuch, is widely presumed to be likely to lean against
the unions. That assumption is based
more on his general conservative
record than anything specific in his
writings or his opinions as a longtime
federal appeals-court judge.
In the last case, it was Rebecca
Friedrichs, a teacher who objected to
the agency fees of the union in her
district (the NEA and its state and
local affiliates) who was the charismatic face of the case.
In the case going before the justices now, it is the soft-spoken Janus
who is going up against AFSCME.
But the stakes are the same-and
very high-all around.
launched a campaign to inform
teachers about the effects of Janus,
said Denise Specht, the union's
president. Most of those teachers,
she said, didn't realize they weren't
And in New York City, union
representatives from the United
Federation of Teachers have been
knocking on the doors of thousands of teachers across the city for
months to talk to them about what
Janus means, and to urge them to
recommit to the union.
"It's really about educating our
members-every benefit and right
we have, we have fought for, we
protect, we have earned," said
Michael Mulgrew, the UFT president. "If [the Supreme Court ruling] doesn't go in our favor, then
we know that we will be targeted
by others giving misinformation to
Currently, 1 percent of teachers in the UFT's bargaining unit
are agency-fee payers rather than
full members. Mulgrew hopes
to get that number down to below
John Troutman McCrann, a high
school math teacher in New York
City, who is also the leader of the
union chapter for his school, has
been working to engage teachers
to make sure they feel represented
by their union. His fear is that if
educators don't have to pay agency
fees, many teachers would become
"We're not going to have some
classes with 40 students and some
classes with 33," McCrann said.
"Folks who don't pay union dues
are going to get the benefits of
what we've been working for."
In California, 10 percent of teachers are agency-fee payers, said Eric
Heins, the president of the Califor-
nia Teachers Association.
In conversations, representatives of local affiliates have learned
that some of those teachers hadn't
joined because they didn't know
what the union did, Heins said.
"It's a good wake-up call, when
you have threats like this, to refocus," Heins said.
When Lily Eskelsen-García, the
NEA president, was a teacher in
Utah, her school's union meetings
were open to members and nonmembers alike, she said.
"It was a chance for us to say, 'Do
you see who we are? Do you see
what we're trying to do? Do you see
why you're important?" EskelsenGarcía said.
That kind of outreach, which
sometimes leads people to join,
needs to happen more often, she
Some say Janus could be an opportunity for educators to rethink
what unions should look like.
"I think a lot of people don't feel
very engaged or don't feel very integral [to] their own union," said
Kathleen Melville, a 9th grade
teacher in Philadelphia who is active in her local affiliate.
She has been talking to her colleagues about the value of being
a union member. "I've never met
a teacher who said, 'I want less in
benefits or to get paid less,'" she
said. "Every member we lose is
power we lose at the bargaining
Politics of Collective Bargaining
Janus, a 65-year-old native of
Springfield, Ill., said he briefly joined
the union when he held a different
state job in the 1980s. He later went
to work in the private sector before
joining the Illinois health-care and
family-services department, where
since 2007 he has worked to help the
children of divorced families get the
proper financial support.
Janus has about $46 deducted from
his paycheck each month for the service fee that goes to the local, the
state affiliate, and to AFSCME, for
Under the Supreme Court's line of
cases in this area, agency fees may
not go for the union's political expenditures. But the groups attacking the
system have fine-tuned their arguments in recent years that the collective bargaining process itself is inherently political, because it involves
policy decisions about spending on
wages, benefits, pensions, and so forth.
"You can't separate the collective
'Do They Represent Me? No'
A nationally representative survey of 537 teachers by the Education Week Research Center found
that 14 percent of teachers said
the union represents their political
views "not at all." About 20 percent