Education Week - June 20, 2018 - 12
To Stem Member Losses, Teachers' Unions Play Offense
Baker, a spokesman for the New Jersey Education Association. "I think that's the important outcome of this: preserving the ability
of the union to communicate with members,
preserving the ability of the union to advocate for members."
CONTINUED FROM PAGE 1
lars to become full members.
Analysts and union officials themselves
expect that unions will lose both members
and revenue dollars if the justices rule the
fees are unlawful. Pro-union legislation that
has recently passed in several states, including California, Maryland, New Jersey, New
York, and Washington state, could help mitigate the effects, union officials say.
Unions have pushed for bills that, among
other measures, would: put restrictions on
the length of time teachers have to opt out
of paying dues, limit the number of services
unions have to provide to nonmembers, and
give unions access to teachers' contact information. Perhaps the most common tack
in this wave of legislation is requiring new
teachers to meet with their union representatives within a month of being hired.
"[We expected that] over the course of
the next several months and years, an onslaught of what we expect to be anti-union
propaganda would be making its way into
our state," said Sean Johnson, the director
of legislative affairs for the Maryland State
The state legislature there passed a bill
that requires new teachers to meet with
a union representative at orientation and
requires school districts to make sure the
union has up-to-date contact information
for all teachers on a regular basis. It became
law in April without the signature of the
governor, a Republican.
Johnson said he hopes the new law will
help stem membership losses that could
come from an adverse Janus decision.
"We wanted to make sure we are in a place
to really position ourselves to talk about collective action and the power of collective
voice [to new teachers]," he said. "I think it
is a position of strength. ... The best defense
for us is a good offense."
Vincent Vernuccio, a senior fellow with
the Mackinac Center for Public Policy, a
free-market think tank, called those meetings with new employees "captive-audience
meetings." He said they are part of a broader
strategy in which unions are trying to curtail worker choice-and some of those measures could be challenged in court, Vernuccio
"Unions are trying to do whatever they
can to circumvent a case that hasn't even
been decided yet in order to trap public employees into paying them," he asserted.
The bulk of the labor-friendly legislation
was introduced this spring. While California unions were given mandatory access to
new teacher orientations last year, legislation introduced this year would give teachers' unions five days to review a teacher's
request to revoke the payroll-deduction authorization of union dues.
That measure would give unions a chance
to try to retain members. That bill has
passed the state House and is awaiting a
vote in the Senate.
In New York, the governor worked with
unions to enact measures that limit the
number of services public-sector unions
must provide to workers who choose not
to join. Although unions still must include
nonmembers in collective bargaining, they
can provide certain legal and job-related services and benefits to members only. Another
measure requires public employers to notify
the union within 30 days of an employee's
hire and share the employee's contact information, as well as give the union an oppor-
OTHER LABOR-FRIENDLY BILLS
Union members now have a 30-day window before the anniversary of when they first authorized
a payroll deduction to stop paying union dues. They must provide written notification to their
union representative within that time period. The governor signed the bill into law in April.
Another bill introduced this spring would have removed economic incentives for employees to
"free ride"-meaning to benefit from the union's collective bargaining without paying. The bill
would have required employers to deduct an amount equivalent to union fees from employees'
paychecks and donate it to a charity specified by the employee. That bill died in committee.
A bill would require employees who choose not to join a union and who do not pay an "agency"
fee (assuming the Supreme Court decision knocks down those fees) to reimburse the union for
the cost of representing them in a grievance proceeding.
This bill has been stalled in a Senate committee since January.
Public employers must let unions meet with new employees for at least 30 minutes during
orientation or at another time within 90 days of the employee's start date.
Unions can deduct dues and fees from public employees' paychecks without their authorization.
Instead, employees who don't want to join or pay dues to the union must opt out in writing.
Both measures were signed into law by the governor this year.
SOURCE: Education Week
More Litigation Down the Road?
Critics, however, say the New Jersey and
New York laws are particularly egregious
and could be challenged in court.
"The Supreme Court may have to take up
another case ... on the New Jersey or New
York laws to say, 'Yes, we really mean it; you
can't force people to pay for politics they
disagree with, and you can't trap them in
[the union],' " said Vernuccio of the Mackinac
Center. "I think it's ripe for litigation in the
Unions are trying to
do whatever they can
to circumvent a case
that hasn't even been
decided yet in order
to trap public
employees into paying
Mackinac Center for Public Policy
tunity to meet with the new employee.
When Democratic Gov. Andrew Cuomo
signed the legislation-which he deemed
the "Janus bill"-in April, he said it was "the
first step of the resistance."
The new law is an attempt at clarifying
unions' responsibilities if the Janus decision
goes against them, said Michael Mulgrew,
the president of the United Federation of
Teachers, which represents New York City
"The same people who funded the Janus
case would have funded a litany of litigation
about every single one of the gray areas that
needed to be cleared up," he said.
Now, he said, the union has fewer responsibilities to represent nonmembers in legal
proceedings and doesn't have to include nonmembers in the UFT's trainings and professional development. And having more access
to new hires will help the UFT pitch their
services to teachers before they are swayed
by anti-union messaging, Mulgrew said.
"We put this in very simple arguments for
our [teachers]: 'These folks are going to tell
you everything in the world about why you
12 | EDUCATION WEEK | June 20, 2018 | www.edweek.org
shouldn't [join] unions, so they can destroy
your livelihood and profession,' " he said.
Meanwhile, in New Jersey, Democratic
Gov. Phil Murphy signed a bill in May that
enacted multiple protections for unions.
The Workplace Democracy Enhancement
Act gives unions the right to meet with new
employees for at least a half hour within 30
days of being hired. Public employers are
now required to give contact information for
all employees-including home addresses
and personal cellphone numbers-to unions
on a regular basis. Under the new law, if a
public employer encourages employees to
drop out of the union, it must reimburse the
union for those lost dues.
The new law also changes the time period in which employees who have decided
to drop out of the union can revoke the authorization of the payroll deduction of union
fees. Previously, there was a statutory optout window. Now, teachers must opt out of
paying dues during the 10 days each year
that follow the anniversary of their hire.
"Honestly, I see [this law as] helping public employees in New Jersey," said Steven
Already, a lawsuit is waiting in the wings
of the Janus decision that would challenge
opt-out windows. Yohn v. California Teachers Association argues that teachers should
have to affirmatively opt into the union, not
opt out. In California, teachers who don't
want to be part of the union must send an
annual letter to the CTA during a time-limited window.
Terence Pell, the president of the Center
for Individual Rights, the libertarian law
firm that filed the Yohn case, said the Supreme Court justices may weigh in on the
opt-out issue in Janus, which could reduce
the need for future litigation.
But if not, he said, Yohn would challenge
rules that make it unduly cumbersome to
leave the union-like the new law in New
"It's not a simple matter of resigning from
the union," Pell said. "You leave the union,
let's say in March, and then you have to wait
for a window in September to revoke the authorization of dues. If you miss that window,
you have to pay for [another] year."
As the Janus decision approaches, unions
are facing a "fork in the road," Pell said.
They could make themselves more responsive and accountable to their members,
which some analysts predict will happen. Or,
Pell said, unions can rely on friendly legislators for protection.
"Running to the state legislature to get
favorable legislation to make it easier for
the unions to mandate membership is really doubling down on the root problem
here, which is that unions are too close to
the government and not close enough to the
members they represent," Pell said. "This
is a further example of basic misalignment
with the unions."